6.4Best Evidence Rule1
“An original writing, recording, or photograph is required in order to prove its content unless [the MREs] or a statute provides otherwise.” MRE 1002. In order for the best evidence rule to apply, the contents of the evidence must be at issue. People v Lueth, 253 Mich App 670, 686 (2002).
Committee Tip:
Keep in mind that MRE 1001, et seq., concern proof of the contents of a writing, recording, or photograph, not necessarily their existence. As such, the best evidence rule does not apply when a party seeks to prove the existence of a writing, recording, or photograph. See People v Tucker, 504 Mich 934, 936 (2019).
In order to lay a proper foundation for the admission of photographs, “someone who is familiar from personal observation of the scene or person photographed [must] testif[y] that the photograph is an accurate representation of the scene or person. Photographs are admissible despite changes in the condition of the scene or person where a person testifies as to the extent of the changes.” In re Robinson, 180 Mich App 454, 460-461 (1989) (citations omitted).
As with all evidence, the trial court has discretion to admit or exclude photographs. People v Mills, 450 Mich 61, 76 (1995), modified and remanded 450 Mich 1212 (1995). “Photographs are not excludable simply because a witness can orally testify about the information contained in the photographs. Photographs may also be used to corroborate a witness’ testimony. Gruesomeness alone need not cause exclusion. The proper inquiry is always whether the probative value of the photographs is substantially outweighed by unfair prejudice.” Mills, 450 Mich at 76 (citations omitted).
In Mills, the victim was intentionally set on fire by the defendants, and the prosecution sought to introduce color slides depicting the extent of the victim’s injuries. Mills, 450 Mich at 64, 68-69. The Court found that the photographs were relevant under MRE 401 because they “affect[ed] two material facts: (1) elements of the crime, and (2) the credibility of witnesses.” Mills, 450 Mich at 69. Additionally, the probative value of the slides was not substantially outweighed by unfair prejudice because, despite their graphic nature, they were an “accurate factual representation[] of the [victim’s] injuries” and they “did not present an enhanced or altered representation of the injuries.” Id. at 77-78.
“Photographs that are relevant are not inadmissible merely because they vividly depict shocking details.” In re Piland Minors, 336 Mich App 713, 734 (2021). Where “[o]ne of the disputes was whether, prior to her death, [the decedent’s] jaundice improved,” autopsy photographs “were highly probative as to how yellow [the decedent] appeared before her death.” Id. at 733-734. “The photographs, although taken after her death, depicted the yellowness of her body, her eyes, and her gums. Expert testimony supported that the yellow pigment shown in the photographs would not have increased after her death.” Id. at 733-734.
“[A] relevant photograph is not inadmissible merely because it may arouse emotion,” and “[t]he prosecution is not obligated to use the least prejudicial evidence possible.” People v Baskerville, 333 Mich App 276, 288-289 (2020). “[T]he ‘unfairness’ of potentially emotionally inflammatory evidence is mitigated when the proponent lacks any less prejudicial way to establish a critical issue.” Id. at 288. In Baskerville, the trial court properly admitted photographs that “served as corroboration of [a witness’s] testimony concerning what she observed and her own actions during the incident, and also served as illustration and corroboration for the testimony provided by an evidence technician and the medical examiner.” Id. at 288-289 (the court was “unconvinced that the emotional impact of the . . . photographs would have been appreciably diminished had they been rendered in black and white rather than in color,” and “[t]he prosecutor explained that the color photographs were necessary for visual ‘clarity’”).
“[S]exually explicit photographs used as evidence of a sexual assault of a minor cannot be unfairly prejudicial per se.” People v Brown, 326 Mich App 185, 194 (2019). “[T]rial courts must weigh the prohibitive value against the danger of any unfair prejudice that admission might cause. A decision on the admissibility of photographs in such cases cannot be based solely on the graphic nature of the photographs.” Id. Although “shocking, indecent, and unsettling,” the trial court acted within its discretion in admitting photos (located on defendant’s cellphone) that depicted the minor victim’s vagina, breasts, and buttocks because the photos were illustrative of the acts depicted and the propensities of the person who took them (defendant), and they were also introduced for purposes other than to merely shock or inflame the jurors. Id. at 193 (the trial court also vastly limited the number of photographs admitted at trial to those in which the victim could identify defendant’s hands). The photographs “corroborate the victim’s testimony . . . because they [were] the only direct evidence confirming any part of the victim’s testimony.” Id. at 194. “Therefore, any prejudicial taint [was] more than overcome by their probative value, regardless of how lurid and despicable the photographs themselves [were].” Id.
“[T]he trial court did not abuse its discretion by admitting . . . photographs into evidence” where “the photographs . . . corroborated testimony regarding the cause of the victim’s death and the nature and extent of his fatal injuries” and “were helpful in establishing the mental state that the prosecutor was required to prove for some of the offenses.” People v Head, 323 Mich App 526, 541-542 (2018). “The nature and extent of [the victim’s] injuries revealed the powerful nature of the short-barreled shotgun and were thus probative of defendant’s gross negligence and recklessness in storing this loaded, deadly weapon in a place that was readily accessible to his unsupervised children,” and “[a]lthough some of the pictures may appear gruesome, their admission into evidence was useful in establishing the mental state that the prosecutor was required to prove, and gruesomeness alone does not require exclusion.” Id. at 542.
The trial court did not abuse its discretion by admitting photographs of the victim lying in a hospital bed with a severely bruised face and wearing a neck brace during the defendant’s trial for aggravated domestic assault and assault with intent to do great bodily harm less than murder. People v Davis, 320 Mich App 484, 487-489 (2017), vacated in part on other grounds 503 Mich 984 (2019).2 The photographs were “highly relevant and probative to establish an essential element of aggravated domestic assault,” and “were not so prejudicial as to warrant exclusion under MRE 403” because “the nature and placement of [the victim’s] bruises and lacerations corroborated her testimony about the assault and depicted the seriousness of her injuries.” Davis, 320 Mich App at 488-489. Further, “[e]ven if the neck brace was ‘precautionary’ only, as argued by defendant, this precaution was required by defendant’s actions,” and “was part and parcel of the medical treatment [the victim] received for injuries sustained after defendant repeatedly punched her in the face.” Id. at 489.
In Robinson, the defendant challenged the admission of photographs taken twenty days after the victim died and after the victim had been embalmed and buried, because they did not accurately depict the victim at the time of death. Robinson, 180 Mich App at 460. The Court of Appeals concluded that admission was proper because testimony established that, although the photographs did not depict the victim at the time of death, the trauma the victim suffered was more likely to show after being embalmed and the photos did depict the victim at the time of the autopsy. Id. at 461 (noting that the extent of the bruises in the photographs were probative of malice).
MRE 1003–MRE 1007 provide exceptions to the best evidence rule. However, because no published case law exists on MRE 1005 (copies of public records) and MRE 1007 (testimony or statement of a party), the rules themselves are quoted for reference purposes.3
MRE 1003 permits the admission of duplicates, unless there are genuine questions about the original’s authenticity or admitting a duplicate make it unfair.
Admitting a true copy of a defendant’s default judgment of divorce, for purposes of deciding whether to bind him over, “was not inherently unfair . . . because it only served to establish that defendant was ordered to pay child support, a fact that defendant [did] not contest.” People v Monaco, 262 Mich App 596, 609 (2004), rev’d in part on other grounds 474 Mich 48 (2006).4
2.Admissibility of Other Evidence of Contents
MRE 1004 does not require an original and provides that “other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.”
Where the defendant was charged with CSC-I, and testimony established that the defendant looked at child pornography on his computer before and during the sexual assaults, it was proper to admit photographs from his computer that were similar to, but not exactly like, those that the defendant looked at during the assaults. People v Girard, 269 Mich App 15, 18-19 (2005). In Girard, the defendant argued that admission of the images violated the best evidence rule because witnesses identified the images only “as being similar to the images they had seen on defendant’s computer.” Id. at 19. According to the Court, testimony about the computer images explained the circumstances under which the sexual assaults occurred, and therefore, with regard to the CSC-I charges against the defendant, the images of child pornography found on the defendant’s computer were a collateral matter unrelated to a controlling issue. Id. at 20. Therefore, the similar photographs were properly admitted against the defendant pursuant to MRE 1004(d).5 Girard, 269 Mich App at 20.
“The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with [MRE 902(4) (self-authenticating evidence)] or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.” MRE 1005. See Section 1.4 for information about judicial notice.
4.Charts, Diagrams, and Summaries
A summary, chart, or calculation may be used “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” MRE 1006. “The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.” Id.
To be admissible under MRE 1006, the underlying materials “must themselves be admissible” and the “summary must be an accurate summarization of the underlying materials.” Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 100 (1995) (quotation marks and citation omitted).
5.Testimony or Written Admissions of Party
The content of a writing, recording, or photograph may be proved “by the testimony, deposition, or written statement of the party against whom the evidence is offered.” MRE 1007. “The proponent need not account for the original.” Id.