i've been practicing law for twenty four years i think this is the first time ago had a best evidence issue aired and i got to thinking about why it is a good this is a rule that it applies constantly i mean it is constantly a dish and every it's important in that it gets overlooked in the reason it's important is because when you take a piece of evidence such as a recording and you convert that into a different form there are opportunities for information to be lost and information to be know one thing that's lost is you don't understand with the words we but do you agree that the judge could exclude the original under four of three because it's not relevant to be helpful to produce a jury and so on i do not think that that is a word about the trial though he argued best evidence rule he didn't explain why the original was relevant in any way why it should not be excluded because there was no argument made is understand it correct me if i'm missing something the record there is no argument we need to original because even though the translation is correct it's important to know who's saying you might have had another argument in your grief i can't remember but those arguments were not allow them to original and that was a perfectly sound decision based on the arguments made to the judge there was no there was no question about the translation being accurate and that was the only thing that seemed to be an issue to the judge i think that you have to go back and look at actually what happened in the trial and it was there was not the offer of the recording that's what's kind of weird about the way that this that this evidence area she developed a trial is it's not a situation where there was a proffer of where the government proffer the recording that never happened there was never really well the record is not relevant because a record of itself was what i understand it tell me if i misconstruing what happened the prosecution altered the translation of the translated transcript there was no real objection to anything in the transcript it was a best evidence argument that the original also needed to be presented without any argument about why that having the original recording would help the  was just a plain old straightforward no frills best evidence rule argument right they have jack sure as to the admission of the transcript it was that can't be given to the jury the less they have yeah this is an expert it's interesting that the one thousand to keep if you look at the guys you're committing notes proposed rules says it should be noted however that will seven o three super pacs per testimony rule allows an expert to give an opinion based on matters not in evidence and the present rule must be read as being limited accordingly in its application because it is a fan pool actually reports where you don't need to have the original if you're just because there's no need that contribute to that is converting the spanish to english right there's a lot more information in there that deals with who is speaking careless to be understood that's not a that is not a subject of an expert whether the transcript comprehensively captured what was in the recording correct and there wasn't any expert presented anyway but it did by the government run corrupt and on the question of did the defense lawyer ever have access to the recording of let me back up i'm i overstated that said that case i have tried to fool kate with defense counsel and been unsuccessful so the truth of it is i'm not in a position to say what he knew or what he did not know but can you say that there's nothing in the record in any case if he had it there's nothing in the record indicate that he did i thought that he didn't i thought the government that there was something in here that the government aided him prior to trial i would defer to record it appears that what was provided is this translation transcript and the agreement was i agreed that these words there are in the ordinary course of this there are so many sub facts you could call them that are decided by a jury just by listening and hearing witnesses and recordings interviewing documents the jury have testified that was his voice there was plenty of evidence of that the question was here we have a tape that the jurors cannot understand they might be to get some information out of listening to the tape about voices but there was no argument made to that effect and you make some arguments on appeal about why the original would have been useful it wouldn't have been apparent to the judge why you felt that way at that time because that argument wasn't made and there was plenty of evidence regarding this is this person talking this person talking the only thing you needed is to know what was being said that was the only issue that was really controverted at the trial and here you have a translation of that conversation which the defense attorney stipulates to be an accurate rendition of the spanish and english so what's the judge supposed to do possible and from everything i can see that was presented to the judge the judge would say there's no purpose and in having the original recording played for the jury it doesn't do anything except confuse them let me ask you this is that was that the only alternative i mean i thought my recollection from looking at the case law was there are some courts that have handled this by accepting the recordings they didn't play in for the jury but they were available to the jury and therefore if the jury wanted to consult the recordings they could consult them and so you didn't have to have the prospect of of the jurors who didn't speak spanish sitting in a courtroom listening for you know this period of time to somebody speaking language they didn't understand is in that right i mean isn't there it's not a binary choice between admit not admit right right well there are other ways to handle it you get a good look to the jury you could have played it in the courtroom you could have said you know we haven't even gotten to the instruction issue but the instruction issue which is a standard instruction presumes that we're going to have all the best evidence will we're going to give the jury  record not the original is destroyed alone what about if it's in if the book because it's irrelevant or at least the relevance is that way by the danger of confusion so that's not that's not in the actual language specific language of the rule as written but that's certainly courts with the the history of the best evidence rule we don't require the original if their summer vacation party we can't do it and one reason could be the original is just too confusing i think that reason cited in these cases and because they often present the tape often so that is the case ron and why didn't we present the tape here the reason not why not in the situation your honor is because the recordings were completely in spanish well no they weren't because even in the transcripts that you have you have english language sprinkled in between the spanish so they were all in spanish they got our eye on the word times where a vast majority of the recordings of transactions occur in spanish in is there some foreign language rule exception in the best evidence rule i didn't see one so your honor as i look at the best evidence of what it stat the best of the original should apply unless there is the rules or federal statute says otherwise this is neither a rule in their federal statute that they are speaking in spanish so the rule i believe that would apply here on the specific rule would be for one relevant evidence and the evidence that has a tendency to make a fact more or less probable and a government counsel argue that relevant we did not honor i didn't think so so you're on it this is a situation where i think that rule court so the tapes try to assert that the tapes should have been played when the district court said they can't understand it because the language is in spanish well that implies the tapes were available and that's a big distinction that's the point i mean this is not a bar near a choice between play the tape play the take you're not play the tapes it's question whether the tapes are admitted in evidence that is correct on or in the united states did not admit the tapes into evidence the united states could have got the tapes  thousand two is not a label the best evidence will be that is what we call that's what's known as the best evidence for so taking a step back what is the best evidence in this particular case is that a spanish court of the people will not understand the translator transcript that the defense attorney prior to trial who speaks spanish had a chance to listen review with his client and say i'm on the record that they or after they said that this spanish to english translation was accurate there's plenty of inaudible in this recording and that inaudible is in the eye you know is in the ear of the listener and so if there is not clear to me that necessarily somebody else who listen he disagreed or had any issue with it the inaudible he could of stated to united states of the court there are sections in here that stated they are in awe of all we disagree we can hear what they're saying they're saying this but that was how it was at the argument that being made here is by invoking the best evidence rule he was in compas saying the concerns of the best evidence will in part of those concerns is simply are you getting something that completely gives you the story you have a transcript here that has inaudible throughout it in places where it's sort of odd where you have you know a little bit of language over here and then you have a lot of bit of language over here and you say wow you surely shouldn't came up with a lot now in that situation one wonders wouldn't the question would be a question mark can i see the recordings listen to the recordings so the availability seems to me to be one of the questions here and of course as you could knowledge you didn't that didn't happen right or do you know who did the district  time with another attorney in my office i discover had done interpretation for the united states times prior so i had those recordings i provided the trooper some of them as well as the records and trooper samone he received at my is probably a month before i had apple opportunity to review it he did make a couple corrections and partly that they stand before inaudible he said no i can hear it they're saying this those were there he made those he said this is accurate i feel comfortable testifying to this once we had that we provided it immediately to mr bruce's and those were the transcripts the translator transcripts that we used at trial aren't going in the transcript what did they look like did they say so and so's the this or do they mr solace to that your honor is we were not sure during trial that we were going to submit that recording or not because it was only his voice as a trial continued mr ruby was one of our last witnesses i thought it was appropriate to have him on the approximately pages a one hundred sixty to one hundred sixty five is where the united states provided the foundation to admit the exhibits stating how to proceed most of they were accurate the defense agreed that they were accurate then we also talked about at that point in time mr sol authentication as well as touched on before is the objection mr bush those made on the record was under one thousand two saying that the transcript should not be limited the best evidence rule requires that the recording itself be admitted there was no contention whether the statements themselves were accurate or whether the foundation and the authentication of the voices were accurate none of those were ever under even in review of his closing arguments but this kind of touches on the harmless error of the closing arguments what the defense attorney relied upon was you cannot trust what these two individuals tell you they are cooperators there was nothing mentioned about the accuracy or the authenticity of those recorders so i think that it does become incredibly relevant on earth because the objection was merely to have a recording not to the accuracy of this and that is what we're because it's one thing to argue to the judge that the originals would be useful because the jury could see who's saying what but was there an affirmative mission concession that these were the speakers did on the tape did they did they we did defer to tense counsel for example ever refer to the conversation and say mr salis said nothing something like that or did they try to impeach to they cross examine in the attempt to impeach the witnesses the voices on the tape but i can tell your honour's during the introduction of those exhibit number one thousand two objection was made there was the non agreement like there was towards the accuracy of that towards we agreed this is the best person we agree that this is a person who did exception under one thousand and two regardless judge johnson to use his discretion in order to say that these translated transcriptions are of the best evidence he used his discretion appropriately and that the notion that we're just going to tip the best evidence just because there is a real lady with her through this rule of evidence doesn't mean that you can just take it any more and more by saying well i think this is the best evidence begins translation of eight three two thousand and six or purchase so it's salient to the jury this is a recorded purchase down below it identifies my client as one of the speakers and then it it my recollection is no one ever saw the change of drugs involving your client exact right that occurred and so in all this surveillance you have the audio recordings in terms of actual visual surveillance of the strange drug transactions  bought drugs from your client right and he's and he's a confidential informant is trying to get his record cleared out who is a drug addict and the court properly instructed the jury you need to really take a good look at these witnesses