Memorandum

To:	Judge Dorothy Toth Beasley
From:	William L. Martin, III
Subject:	Rule 21. Physical Evidence - Original Evidence
Date:	November 6, 1997

In response to your comments on the proposed Rule 21, I am opposed to a rule requiring the trial court clerk to send original evidence in every case.

Many clerks do not have the original evidence; it is stored with the court reporter. Even clerks who maintain the original evidence do not like to send it along with the copy of the record. Many will only do so upon an order of the trial court judge or an order of this Court.

Also, the ease and costs of reproducing photographs, audio tapes, videotapes and/or the ability and cost to reduce large maps and plats is a factor to be considered. Many of the smaller counties do not even have the facilities in their local county seats to accomplish this.

In most cases, the original evidence may not even be necessary. I believe the rule which will permit attorneys to send original evidence if the attorneys deem it appropriate or the Court ordering the evidence if the Court needs it, will suffice.

I am not in favor of a rule that requires the trial court clerks to send the original evidence, absent an order from this Court. Simply by putting a rule in our rule books to require the clerk to send up original evidence will not necessarily translate to educating the trial court clerk of that fact. Secondly, I would hate to have a rule that requires action of the clerks for which they do not comply.

I feel the current system of having the original evidence transmitted to the Court on a case-by-case basis is better than having all original evidence sent up as a general rule. There is a space problem in storing the original record, as well as the costs of returning the original evidence and the danger that original evidence can be lost or destroyed. Only recently, a staff attorney erased or copied over a videotape when trying to view same.

Thank you.