People v. Enskat
20 Cal. App. 3d Supp. 1 (1971)
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Rule of Law:
A motion picture film is a 'writing' under the California Evidence Code. Therefore, the best evidence rule applies, requiring the prosecution to produce the original film in an obscenity case to prove its contents, unless a valid statutory exception for using secondary evidence is established.
Facts:
- An individual, Enskat, operated a theater where he exhibited a motion picture titled 'The Collection.'
- The film depicted various homosexual acts, including masturbation, flagellation, and sodomy, and featured an all-male cast.
- Police officers entered the theater as part of an investigation into the film.
- The officers did not seize the motion picture film itself, but instead took still photographs of portions of the movie as it was being projected onto the screen.
Procedural Posture:
- The People charged Enskat in a trial court with violations of Penal Code section 311.2 for exhibiting obscene motion pictures.
- At a jury trial, the prosecution sought to prove the film's contents through the testimony of police officers and still photographs taken of the screen during the exhibition.
- The prosecution did not offer the actual motion picture film into evidence.
- The defense raised a 'best evidence' objection to the officers' testimony and photographs, which the trial court overruled.
- The jury returned a guilty verdict on one count.
- Enskat, as the appellant, appealed the judgment of conviction to the appellate court.
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Issue:
Does the best evidence rule apply to a motion picture film, thereby requiring the prosecution in an obscenity case to produce the actual film in court rather than relying on secondary evidence like witness testimony and still photographs to prove its contents?
Opinions:
Majority - Zack, J.
Yes. The best evidence rule applies to a motion picture film, and the trial court erred in admitting secondary evidence of its contents. A motion picture film qualifies as a 'writing' under the broad definition in Evidence Code section 250, which includes photographs or any other means of recording a communication or representation on a tangible object. A film is a series of individual pictures recorded on a celluloid strip. The images projected on a screen are merely a consequence of this underlying 'writing.' The policy behind the best evidence rule—that the trier of fact should examine the original evidence—is particularly applicable in obscenity cases where the content is the central issue. The prosecution failed to lay a proper foundation for a statutory exception to the rule, such as by showing the film was in the defendant's control and formally requesting its production at trial. Because the improperly admitted secondary evidence was the only evidence of the film's content, the error was prejudicial and requires reversal.
Analysis:
This decision solidifies the application of traditional evidentiary rules, like the best evidence rule, to modern forms of media such as motion pictures. By classifying a film as a 'writing,' the court prevents prosecutions from relying on potentially subjective or incomplete testimonial descriptions of allegedly obscene material. This ruling creates a significant procedural hurdle for prosecutors in obscenity cases, requiring them to either obtain the physical film (often through a warrant subject to First Amendment scrutiny) or satisfy strict foundational requirements to use secondary evidence, thereby affording greater protection to defendants in such cases.
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