Does the Best Evidence Rule Apply to a Videotape Which Recorded the Defendant's Shoplifting but Was Later Lost ?
Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A.2d 355, 357 (Pa. Super. 1993), reaffirms the rule's applicability if the contents of the writing must be proved to make a case.
In that case, the rule was extended to a videotape, which recorded a defendant shoplifting; the tape was later lost.
At trial, two Commonwealth witnesses were called.
One was a store employee, who testified to watching the shoplifting as it occurred; the other was a policeman called to the scene, who only watched the tape but testified to its contents.
The latter's testimony was held subject to the rule, as the contents of the tape were the very acts of the accused, the direct depiction of that which occurred.
However, the employee's testimony was not complained of - he had direct knowledge, and could not be rendered incapable of direct testimony simply because the things he saw were taped and the tape lost.
The rationale for the best evidence rule is readily apparent: in light of the added importance that the fact-finder may attach to the written word, it is better to have available the exact words of a writing, to prevent "the mistransmitting [of] critical facts which accompanies the use of written copies or recollection," and to prevent fraud. Lewis, at 358.