BRIEF IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE HANDWRITTEN TRANSCRIPT OF TEXT MESSAGES
INTRODUCTION
Defendant John Davis respectfully moves the Court to exclude the handwritten transcript of text messages prepared by Officer Robert Powers and offered by the State to prove the content of communications between Mr. Davis and Sally Cameron. The State seeks to introduce the transcript to prove that Mr. Davis and Ms. Cameron arranged the sale of cocaine—the very heart of the conspiracy charge. Columbia Rule of Evidence 1002, the original documents rule, requires the State to produce the original text messages, or a true counterpart, to prove their content. Because the State cannot produce the originals and because no exception under Columbia Rule of Evidence 1004 saves the transcript, the transcript must be excluded.
ARGUMENT
I. Rule 1002 Bars Use of the Handwritten Transcript Because the State Offers It to Prove the Content of the Text Messages.
Columbia Rule of Evidence 1002 provides that "[a]n original writing, recording, or photograph is required in order to prove its content, unless these rules provide otherwise." The text messages are "recordings" or "writings" within Rule 1001 because they consist of "letters, words, numbers, or their equivalent" set down or recorded electronically.
The State plainly offers the transcript "to prove its content." The State's stated theory is that the texts "show that Ms. Cameron routinely connected Mr. Davis with individuals wishing to purchase cocaine, and that Mr. Davis then met with the buyers." Conviction of conspiracy requires proof of an agreement to commit the underlying offense. The transcript is being used to establish that very agreement—the words spoken between the alleged co-conspirators. The exact wording matters: every reference to "C," "blow," "snow," "stuff," and "shipment" is essential to the State's argument that the messages discuss cocaine. This is precisely the situation Rule 1002 governs.
The Columbia Supreme Court drew this line clearly in State of Columbia v. Susan Jones (2016). There, a detective's notes and testimony about emails between Jones and her co-conspirator were admitted "solely to establish the fact that Jones was in communication with the co-conspirator, and not to prove the content of the emails." On that record the Court affirmed because Rule 1002 was not implicated. The Court emphasized, however, that "if testimony attempts to prove the contents of the document, such testimony is not admissible unless the original document is provided or an acceptable explanation for its absence is given."
This case is the opposite of Jones. The State is not offering the transcript merely to show that Mr. Davis and Ms. Cameron communicated; it is offering it to prove what they said and that what they said was an agreement to distribute cocaine. Rule 1002 squarely applies, and the original messages are required.
II. Officer Powers's Handwritten Transcript Is Not an "Original" Under Rule 1001(d).
Rule 1001(d) defines an "original" of a writing or recording as the writing or recording itself, or any counterpart "intended to have the same effect by the person who executed or issued it." For electronically stored information, an "original" includes "any printout—or other output readable by sight—if it accurately reflects the information."
A handwritten transcript prepared days later by a third-party officer is none of these things. It is not the text messages themselves; it is not a counterpart issued by Mr. Davis or Ms. Cameron; and it is not a printout or machine-generated output of the electronic data. It is, at best, a witness's recollection committed to paper. Officer Powers conceded that he made no electronic copy and printed nothing—he wrote the messages by hand "over the course of two days, in between a couple of witness interviews and some other things that were happening." A handwritten reconstruction is the very kind of secondary, error-prone evidence that Rule 1002 was designed to exclude. As the Jones court observed, "[t]he exact wording of a document is often of great importance, and a slight variation in wording can sometimes result in a substantial change in meaning."
III. No Exception Under Rule 1004 Permits Admission of the Transcript.
Rule 1004 excuses production of an original only where: (a) all originals are lost or destroyed and not by the proponent acting in bad faith; (b) the original cannot be obtained by judicial process; or (d) the writing is not closely related to a controlling issue. None of these exceptions saves the State's transcript.
A. The Originals Are Unavailable, but the Loss Is Attributable to the State.
The State will argue under Rule 1004(a) that the messages are lost because Ms. Cameron's phone was set to auto-delete after two weeks, the cell phone provider no longer had the data, and Mr. Davis destroyed his own phone before arrest. But the controlling fact is that Ms. Cameron's phone was in police custody when the messages were deleted. Officer Powers seized the phone pursuant to a warrant and placed it in the police evidence locker. He admitted he had no training in handling electronic evidence ("Everyone in my department pretty much has to figure these things out for themselves"), and that he made no printout, photograph, screenshot, or forensic image despite having the phone in his physical possession. The technology to do so is widely available; his explanation that "we don't have any way of printing out texts from a cell phone" is not credible and reflects, at minimum, negligent disregard for the standard of care.
B. The State Has Not Met Its Burden to Justify the Loss Under Grimes.
State of Columbia v. Brian Grimes (2018) controls the analysis where evidence has been lost while in government custody. Grimes requires the court to "balance the quality of the government's conduct against the degree of prejudice to the accused." The government bears the burden of justifying its conduct, and the court must consider "whether the evidence was lost or destroyed while in its custody, whether the government acted in disregard for the interests of the accused, [and] whether it was negligent in failing to adhere to reasonable standards of care for police and prosecutorial functions."
The facts here mirror Grimes. There, travelers checks were placed in a "secure vault at the central police station" and then "subsequently disappeared and no explanation has been offered for their loss." The Court of Appeal reversed the trial court's denial of the motion in limine because "[t]he State was unable to meet its burden of justifying its conduct, since it offered no explanation for when or how the travelers checks disappeared." Here likewise, the original text messages were lost while the phone was in police custody, and Officer Powers offers no explanation other than that the phone happened to auto-delete after he had already had it in his possession—a fact he learned only when he "went back to have another look at it." The State has offered no explanation for why no printout, screenshot, or forensic image was made before the deletion occurred. Under Grimes, the State has not justified its conduct.
C. Mr. Davis Will Be Severely Prejudiced.
Grimes identifies three prejudice factors: "(1) the centrality of the evidence to the case and its importance in establishing the elements of the crime, including motive or intent; (2) the reliability of secondary or substitute evidence; and (3) the probable effect on the jury from absence of the evidence."
Centrality. The text messages are not peripheral—they are the heart of the State's conspiracy case. To convict, the State must prove an agreement between Mr. Davis and Ms. Cameron to distribute cocaine. The transcript is the only direct evidence of that agreement. As in Grimes, where the travelers checks were "central to the theft charges," the texts here are central to the conspiracy charges.
Reliability of Secondary Evidence. The transcript is profoundly unreliable. Officer Powers admitted he prepared it over two days, while juggling "a couple of witness interviews and some other things that were happening," interrupted by "phone calls, meetings, [and] people coming by my desk." He admitted he had no training in handling electronic evidence. He had no electronic copy or photograph against which to verify accuracy. When asked whether he could "testify to the accuracy of this transcript," he could only say: "Well, I think it's pretty accurate, yeah." That hedged answer underscores the risk of error.
Effect on the Jury. A handwritten transcript by a police officer—presented as the verbatim record of a defendant's words in a drug case—will carry powerful weight with a jury, while Mr. Davis has no ability to confront the actual messages, examine their context, or test the accuracy of Officer Powers's transcription. As Jones warned, "[o]ral testimony about the contents of a writing may also be subject to greater risk of error than testimony about the writing." A handwritten transcript compounds that risk.
D. The Transcript Is Closely Related to a Controlling Issue.
The State cannot rely on Rule 1004(d). The transcript goes to the central issue in the case—whether Mr. Davis agreed to distribute cocaine.
CONCLUSION
The State seeks to convict Mr. Davis of conspiracy by introducing a handwritten transcript prepared days after the fact by an officer with no training in electronic evidence, while the original messages were lost from a phone in police custody, and where no printout, photograph, or forensic image was ever made. Rule 1002 prohibits this. The exceptions in Rule 1004 do not apply because the State cannot justify the loss and Mr. Davis will be severely prejudiced under the Grimes balancing test. Mr. Davis respectfully requests that the Court grant the motion in limine and exclude Officer Powers's handwritten transcript.
Respectfully submitted,
Office of the Public Defender
（约 1,440 words）