Memorandum

To:	Judge Dorothy Toth Beasley
From:	William L. Martin, III
Subject:	Reference Rule 21. Physical Evidence - Original Evidence
Date:	November 25, 1997

Thank you for your memorandum of November 13, 1997 regarding the proposed Rule 21 for our new rules. I am still of the opinion that requiring a trial court clerk to send original evidence with each and every case is not a good idea. I prefer the current Rule 21 which is a restatement of Rule 45 of the rules of this Court since 1979. I have attached zeroxed copies of the rule from the rule books of 1979, 1988, 1992 and 1995, for your perusal.

I would prefer to deal with the exceptions as they come along rather than make a rule which will require original evidence sent in each and every case when it is probably not needed in each and every case. I believe it is better for the respective judge's office to make that determination.

As far as I know, the clerk's office has not had any problems in obtaining the original photographs, documents, audio or video tapes from the trial court on a timely basis when the original documents were needed in this Court.

I am not sure that the code contemplates sending the original evidence to the Court of Appeals initially. In the Appellate Practice Act at 5-6-41(f), the code says "[ T]he trial court or the appellate court may at anytime order the clerk of the trial court to send up any original papers or exhibits in the case, to be returned after final disposition of the appeal". This subsection deals with situations where the party contends that the record or transcript does not truly or fully disclose what transpired at the trial court. It would seem to me to indicate that the original documents should remain with the trial court until such time as the trial court or the Court of Appeals makes an ad hoc determination that they should be sent to the appellate court.

Although I do not agree with your position on Rule 21, I have drafted a proposed Rule 21 which I hope will address your concerns. I have attached it to this memo.

If you have any questions or comments regarding this memo or Rule 21, please feel free to contact me.

Thank you.

Attachments

V.	RECORDS AND TRANSCRIPTS

PROPOSED RULE 21. Physical Evidence

Any party relying on physical evidence may include as a part of the transcript a photograph of evidence, together with an explanation or description if deemed necessary, in lieu of transmitting the original evidence. If the relying party deems the original evidence to be of such importance that a photograph or a description cannot suffice to demonstrate such parties contention, such party may apply to the trial court for an order directing the transmission of evidence to this Court. In no event, unless directed by this Court, shall physical evidence be sent up which is bulky, cumbersome, or expensive to transport, or which by reason of its nature, is dangerous to handle.

When the physical evidence upon which the party is relying is a photograph, video tape, audio tape or other document, the parties relying upon such documents shall cause the trial court clerk to transmit such original evidence to the court to be returned after final disposition of the appeal.