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Laws of Evidence

The best evidence rule is the rule of evidence in the common law (Ormerod & Murphy, 2008). The rule requires that to prove the content of a recording, writing or photograph, the original must be availed. In the United States the rule also admits reliable duplicate of a document if the original is unavailable. The law is the foundation for inadmissibility of hearsay evidence in the court process. Lord Harwicke, the man credited with being the architect of this rule stated the following in a ruling in Omychund vs. Barker (1745), “no evidence is admissible unless it is the best that the nature of the case will allow”.

The best evidence rule was founded in Britain but was later introduced to other countries including Canada and the United States (Ormerod & Murphy, 2008). The rule aims at forcing parties in litigation to produce the most reliable evidence within their reach. The rule now applies in most states in the U.S. California is in fact the only state that accepts secondary evidence (Bodin, Avery & Liacos, 2007). The law, however, gives the judge power to determine whether evidence is admissible in accordance with Rules 1001 to 1008 which are the codified forms of the rule contained in the Federal Rules of Evidence. The rule has had serious implications in the judicial processes in the United States since its adoption (Welsh & Tomkovics, 2004). It has eliminated hearsay evidence and has made the evidence admitted in the courts more credible. On the other hand, it has created a leeway that has led to many people being denied evidence as the only evidence they can produce is secondary. Critics of the rule claim that it emphasizes more on admissibility of evidence rather than the weight of the same. Critics also claim that the rule is now outdated as methods of authenticating secondary evidence are available (Gardner & Aderson, 2010).

While the authenticity of evidence produced in court is paramount to its admission, the methods used to acquire the evidence have become an important factor in determining the evidence admissibility in the United States’ judicial process. Evidence obtained through illegal methods has in many cases failed to be admitted in court. This has led to the birth of the "fruit of the poisonous tree" doctrine that in the literal sense implies that fruits obtained from a poisonous tree are bound to be poisonous as well, hence evidence obtained through illegal means is illegal as well and consequently inadmissible in court (Hess & Orthmann, 2009).

Olmstead vs. The United States is one case that brought the implication of illegal acquisition of evidence to the bearing of the case in a criminal trial (Welsh & Tomkovics, 2004). In the case Roy Olmstead and several other petitioners who had been convicted of conspiring to violate the National Prohibition Act challenged their conviction on the grounds that the evidence used in their indictment had been obtained through wiretapping which was violation of their fundamental rights. In this case and later in similar cases, the judges had to determine whether the right to privacy extends to public places such as telephone booths if the constitutional term search is confined only to physical intrusion  (Bodin, Avery & Liacos, 2007).

The case was dismissed on a majority verdict of 5 to 4. The Chief Justice Taft, joined by Justices Sanford, McReynolds, Van Devanter and Sutherland referred to earlier cases where illegally obtained evidence had been admitted into the court (Ormerod & Murphy, 2008). Justice Taft argued that the Fifth Amendment which protects individuals from abuse of government power in legal proceedings can only be applied together with the Fourth Amendment which protects individuals against uncalled-for searches and seizures. He points out that since there were no searches or seizures, there was no violation of the defendants’ rights. He also cites the fact that Olmstead and the others were not coerced to talk over the phone and that the phones tapped were outside the defendants’ residences and offices as further reason for dismissing the petition since their rights to privacy and freedom from coercive interrogation were not violated (Gardner & Aderson, 2010).

The dissenting judges raised important issues, some of which became the bases for later cases. Justice Brandeis criticizes the proposition that the provision of the Fourth Amendment does not include protection of conversations made over the telephone (Welsh & Tomkovics, 2004). He continues to write that at the time the two amendments were adopted, the only means by which one could be forced to incriminate themselves was through “force and violence”.  Brandeis feels that with advanced technology, the government can now use methods such as wiretapping to invade the individuals’ privacy. He continues to write that though these methods may seem perceptive, they work against the spirit of these two amendments. He further compares a telephone call with a sealed letter and retaliates that tapping a phone call is akin to opening a sealed letter. Brandeis feels that wiretapping is a crime; Olmstead and the others were in the case as a result of crimes committed by the government officials (Gardner & Aderson, 2010). He writes that the government is not guilty of the crime since it had not instructed the individual officers to commit crime on its behalf. However, he feels that the government would become complicit in the crime if the court let it punish the defendants from evidence obtained through an illegality.

In Goldman vs. The United States, the jury also dismissed a petition that wire-tapping was a violation of the defendant’s fundamental rights (Hess & Orthmann, 2009).  The petition strengthened the ruling in Olmstead vs. The United States.

Katz vs. The United States, however, overruled both the Olmstead and Goldman cases. The 7-1 majority ruling states that electronic eavesdropping is violation of the right to privacy as someone making a phone call in a closed booth expects that only the person he or she is speaking to is listening to the conversation (Welsh & Tomkovics, 2004). A phone call made in a public booth whose door is closed is therefore private. Tapping the same, therefore, is violation of the provisions of the Fourth Amendment. The court ruled that any conversation, regardless of location, is guarded from unreasonable search and seizure in accordance with the Fourth Amendment if the conversers “expect reasonable privacy” (Welsh & Tomkovics, 2004). Even though there is no physical intrusion wiretapping, it should still be considered as a search. Wiretapping was therefore found to constitute both a search and a seizure. Charles Katz was therefore freed of all the counts. In his dissenting opinion Justice Hugo Black reasoned that wiretapping is equivalent to eavesdropping (Gardner & Aderson, 2010). Since the drafters did not include eavesdropping as violation of the basic rights, even though it was present then, wiretapping, which is the modern version of eavesdropping, cannot be considered to prohibit the Fourth Amendment.

In Nardone vs. The United States, the court ruled that any evidence obtained through wiretapping or any implication by such evidence is illegal. This is because it is in violation of the Communications Act of 1934. For a court to acquit the accused through inadmissibility of evidence, the accused must prove that most of the evidence is inadmissible. It is also their burden to prove that the wiretapping was illegally employed. In this case more than 75% of the evidence presented was found out to have been obtained by this way (Ormerod & Murphy, 2008). Nardone was therefore acquitted.

In Berger vs. New York, the court ruled that an ex parte order to bug the office of an attorney was given to a policemen, was illegal and in violation of the Fourth Amendment (Gardner & Aderson, 2010). The resulting conviction was therefore nullified by the Supreme Court and the reasons given for the Katz vs. The United States were cited.

Most of these cases were ruled in favor of the defendants, following the "fruit of the poisonous tree" doctrine (Ormerod & Murphy, 2008). The incriminating evidence was obtained unlawfully and was therefore inadmissible in the court. It underscores the need for the law enforcement officers to use lawful means in obtaining evidence.

In a case where the original documents are lost, the odds are ten to one that one would win the case (Hess & Orthmann, 2009). The fact that the duplicates available are of low quality, is sufficient ground for their inadmissibility. The most prudent action would be to look for a way or evidence that proves that available documents are authentic.

The rules of evidence are aimed at ensuring that only the best available evidence is tabled in court and that the evidence is collected within the dictates of the law. While this enhances the rule of law, it is clear that many are denied justice due to the rigidity of the laws. It is therefore imperative for the lawmakers to device laws that address this issue.

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