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2. Should the officer's testimony concerning the defendant's recorded confession be admitted?
A defendant was charged with burglary. At trial, a police officer testified that, after the defendant had been arrested and had agreed to answer questions, the officer had interrogated him with a stenographer present, but that the officer could not recall what the defendant had said. The prosecutor presented the officer with a photocopy of the stenographic transcript of the interrogation. After looking at it, the officer began to testify that he recalled that the defendant had admitted to being in the area of the burglary. The defendant has objected to the officer's testimony on the ground that it violates the «original document» rule (also known as the «best evidence» rule).
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A is incorrect. The prosecutor is trying to prove what the defendant said, not what the transcript says. Accordingly, FRE 1003, the best evidence rule, is not relevant. Even assuming that the best evidence rule applied here, this is not an accurate statement of the law. Under Rule 1003, a duplicate is admissible without any showing that the original is unavailable. A showing of unavailability is required only if the party is seeking to introduce something other than a duplicate (e.g., oral testimony) to prove the contents of a document. See Fed. R. of Evid. 1004.
B is incorrect. Under FRE 612, the copy of the transcript may be used to refresh the officer's recollection. This is not a case of past recollection recorded, in which the prosecutor would have to show that the stenographer accurately recorded what the defendant said. In this case, the officer is testifying to his own recollection of what the defendant said, that recollection having been refreshed by looking at the transcript. A document used only to refresh recollection does not have to be accurate or reliable, because the document is not being admitted into evidence. The officer's testimony is the evidence.
C is incorrect. Although FRE 1003 supports the admission of photocopies with some exceptions, this answer assumes that the best evidence rule applies here, which it doesn't. The prosecutor is trying to prove what the defendant said, not what the transcript says. The transcript here is being used to refresh the officer's recollection under FRE 612, and Rule 1003 is not relevant.