Testimony About Snapchat Messages Not Precluded by “Best Evidence” Rule

From Turner v. State, decided Thursday by the Arkansas Supreme Court (in an opinion by Justice Shawn Womack):

The evidence presented at trial establishes the following account of events. On April 26, 2021, Shelby and Verser were sitting in a parked car after returning from dinner when they were ambushed by three gunmen. In a matter of seconds, twenty-three bullets were fired into the vehicle, striking Shelby and Verser repeatedly, killing both. Shelby, age twenty, and Verser, age twenty-three, were killed instantly. Turner, a close acquaintance of Shelby’s, was implicated in facilitating the ambush. Testimony and phone records from the night showed that Turner had communicated with the gunmen multiple times just before the shooting, despite later denying that he knew them. These communications—coupled with security footage and witness testimony—presented Turner as the primary organizer of the murders….

After the shooting, Turner attempted to conceal his involvement…. [Among other things, a] key witness, … Pavliv[,] testified that after she informed Turner of police questioning, he sent a Snapchat message instructing her to withhold information about the gun….

Turner contends that the circuit court abused its discretion in allowing testimony from Pavliv about a self-destructing Snapchat message that Turner sent her in violation of Arkansas Rule of Evidence 1002. Specifically, Turner contends that admitting this testimony violated the best-evidence rule because the message itself was not produced. However, the State disputes the rule’s applicability, given that Snapchat messages are designed to be deleted automatically. Testimony from Pavliv established that Snapchat messages self-destruct and were unavailable for retrieval, much like a telephone conversation, which does not produce a permanent record. Thus, the State claims the general exception to the best-evidence rule, Arkansas Rule of Evidence 1004, is implicated….

The “best evidence” rule provides, in relevant part, that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required,” but not if:

(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;

(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing; and he does not produce the original at the hearing; or

(4) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.

And exception (1), the court held, applied here:

The best-evidence rule applies only if an “original” exists, but Pavliv’s testimony established that the Snapchat communication, as was customary, was automatically deleted. In such instances, Rule 1004 of the Arkansas Rules of Evidence permits other evidence of the message’s contents when the original is lost or destroyed without bad faith. Because Rule 1004 clearly applies here, the circuit court acted within its discretion in admitting Pavliv’s testimony under this exception.

Turner further argues that the State was required to attempt retrieval of the Snapchat message, yet Rule 1004 does not impose this requirement. Indeed, Rule 1004′s provisions are disjunctive; it is enough that the message was lost without bad faith, which was supported by Pavliv’s testimony. It should also be noted that courts in other jurisdictions have found that the self-destructing nature of Snapchat messages leaves witness testimony as the sole admissible evidence in such cases, reinforcing the circuit court’s decision here….

David L. Eanes Jr. represents the state.

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