Best evidence rule includes videotapes.

• Author: Ziemer, David

Byline: David Ziemer

Some cases have unusual facts; others an unusual procedural history. The case of William Troy Ford, decided by the Wisconsin Supreme Court on Dec. 11, has both.

And while the decision issues two important holdings -- the best evidence rule includes videotapes; and destroyed evidence includes impaired evidence -- it leaves open the bigger issue of whether gross negligence can constitute bad faith for purposes of the rule.

Strange Facts

Ford was charged with battery, bail jumping, and conspiracy to bribe a witness, all as a repeater. The battery charge stemmed from an incident at a convenience store.

According to the decision, he allegedly struck the clerk in the head with a glass bottle, and demanded the clerk give Ford his car. When the clerk refused, he asked that the clerk pay for merchandise for Ford's female companion. When the clerk refused this as well, the woman paid for her items, and Ford apologized and left.

However, the clerk did not call police until two hours later, when another customer, Larry Wolfgram, recommended that he do so.

The incident was recorded on the store's security videotape recorder, but by the time the police obtained it from the store a few weeks later, it had been viewed so many times that it was irreparably damaged. It may also have been damaged further in transit to the State Crime Lab.

Strange Procedure

During the trial, Wolfgram served as the court's bailiff; however, neither the prosecution nor the defense knew his role in the incident until the clerk, while testifying, pointed to Wolfgram, and identified him as the person who advised him to call police. The trial court then found a new bailiff to serve for the rest of the trial.

Because the videotape was damaged and could not be viewed by the jury, the court permitted witnesses who had watched the tape to testify to its contents.

Ford was convicted, and the court of appeals affirmed in an unpublished decision. The Supreme Court also affirmed, in an opinion by Justice Ann Walsh Bradley, holding that the relationship of the bailiff to the case did not require a mistrial, and that the testimony of those who watched the videotape as to its contents was properly admitted.

Mistrial

Although some cases have held that a mistrial is required because of contact between a jury and a witness who also served as a bailiff, the court concluded all were distinguishable.

Wolfgram did not testify, nor did he have significant contact with the jury. In...