GRE 1004(1) and Missing Surveillance Video: Third-Party Destruction Excuses the Original, and Secondary Evidence Has No Hierarchy Even If Police Destroy a Duplicate

1. Introduction

People of Guam v. Jared John Santos, 2025 Guam 15, arises from a Hågat drive-by shooting that resulted in Santos’s convictions for aggravated assault and possessing a firearm without a license (and an acquittal on attempted murder). The appeal turned on a single evidentiary dispute: whether police officers could testify about the contents of a gas-station surveillance video when (1) the government never obtained the original, and (2) the investigating detective deleted the only “working copy” he had recorded on his personal phone.

The case presented two interlocking questions under the Guam Rules of Evidence (“GRE”): (i) whether Santos preserved a “best evidence rule” objection despite not citing the rule by name, and (ii) whether GRE 1002 barred officers’ testimony (secondary evidence) or whether GRE 1004(1) excused production of the original given its loss/destruction—and, critically, who “destroyed” the original for purposes of bad faith analysis.

2. Summary of the Opinion

The Supreme Court of Guam affirmed. It held:

• Preservation: Santos preserved the best-evidence issue because the basis for his standing objection was apparent from the trial context, satisfying GRE 103(a)(1).
• Merits: The officers’ testimony was admissible under GRE 1004(1) because the original surveillance footage was destroyed (overwritten) by a third party, not by the government.
• No hierarchy of secondary evidence: Even though GPD destroyed the only duplicate (“working copy”), the Rules do not impose a hierarchy requiring a duplicate instead of testimony once GRE 1004 is satisfied.
• Remedy: Any arguable unfairness from the government’s conduct was addressed through the trial court’s adverse inference (lost/destroyed evidence) instruction to the jury.

3. Analysis

3.1. Precedents Cited

A. Preservation and standards of review

• People v. Bosi, 2022 Guam 15: Used for the propositions that evidentiary rulings are generally reviewed for abuse of discretion when properly preserved, and that preservation requires a timely, specific objection. The court in Santos applied Bosi’s preservation framework, then relied on GRE 103(a)(1)’s “apparent from the context” safety valve.
• People v. Kusterbeck, 2024 Guam 3 and Nat'l Union Fire Ins. Co. of Pittsburgh v. Cyfred, Ltd., 2015 Guam 7: Provided the abuse-of-discretion articulation—an abuse exists when the reviewing court is firmly convinced a mistake was made regarding admission of evidence.
• People v. Sharpe, 2024 Guam 12 and People v. Jesus, 2009 Guam 2: Supplied the rule that a court abuses discretion by applying an erroneous legal standard or misapprehending the law, and framed harmless-error review for non-constitutional evidentiary issues.
• People v. Pinaula, 2025 Guam 6 and People v. Roten, 2012 Guam 3: Reinforced the prosecution’s burden to show non-constitutional evidentiary error was harmless and provided the multi-factor harmless error inquiry.

B. “Apparent from the context” preservation (federal persuasive authority)

• United States v. Cummings, 858 F.3d 763 (2d Cir. 2017): Cited for the idea that contextual cues can sufficiently identify an evidentiary issue and give the trial court an opportunity to correct error.
• United States v. Gordon, 875 F.3d 26 (1st Cir. 2017): Contrasted to emphasize that “context” does not salvage an objection where multiple grounds are plausible—but in Santos, the prosecutor himself flagged the best evidence rule pretrial, making the objection’s basis obvious.
• Dyer v. State, 26 So. 3d 700 (Fla. Dist. Ct. App. 2010): Used as an analogue where a defendant preserved the best evidence issue without invoking the rule by name by objecting to testimony about a video’s contents.

C. Best evidence doctrine and secondary evidence when originals are lost/destroyed

• Shorehaven Corp. v. Taitano, 2001 Guam 16: The court treated Shorehaven as a foundational Guam statement that (i) the GRE exceptions are expansive and (ii) the Rules “do not establish a hierarchy of secondary evidence.”
• Baker v. State, 2022 WY 106: Provided the key evidentiary point that negligence or lack of diligence does not equal “bad faith” under Rule 1004(1).
• People v. Robinson, 38 N.Y.S.3d 601 (App. Div. 2016): Illustrative of situations where missing video was never in police/prosecution possession, supporting admission of secondary proof.
• State v. Nelsen, 183 P.3d 219 (Or. Ct. App. 2008): Central to the “third-party destruction” analysis—failure to obtain evidence from a third party who later destroys it does not mean the state destroyed it, absent agency/direction.
• People v. Smith, 2021 IL App (5th) 190066, aff'd, 2022 IL 127946, and United States v. McGaughey, 977 F.2d 1067 (7th Cir. 1992): Cited for the rule that proponents need not prove diligence in obtaining the original before destruction to admit other evidence of contents.

D. Spoliation-type remedies and adverse inference

• Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995): The court used Vodusek to explain that even when secondary evidence is permitted, trial courts have discretion to level the playing field through sanctions, including adverse inferences, particularly when willful conduct caused loss.
• Arizona v. Youngblood, 488 U.S. 51 (1988): Cited as a due process backstop (outside the evidentiary rules) for failure to preserve potentially exculpatory evidence under certain circumstances.
• People v. Superior Court (Laxamana), 2001 Guam 26: Invoked to stress Guam courts’ willingness to intervene where GPD practices improperly destroy potentially relevant materials.
• People v. Ojeda, 2025 Guam 5: Used to underscore the notion that the government should not gain advantage through negligence and that adverse inference-type relief may be appropriate depending on the circumstances.

3.2. Legal Reasoning

A. Preservation: context made the best-evidence basis obvious

Although Santos’s counsel did not say “GRE 1002” at the moment of objection, the court emphasized the surrounding record: the prosecutor proactively raised “the best evidence rule” before openings, the defense had already voir-dired jurors about the missing video, and counsel placed a standing objection on the record directed specifically at “testimony about the video” and “the general testimony about the video.” Under GRE 103(a)(1), a specific ground is not required when it is “apparent from the context.” Guided by United States v. Cummings and Dyer v. State, the court held the objection was sufficiently specific to preserve the claim for abuse-of-discretion review.

B. Merits: GRE 1004(1) applied because the “original” was destroyed by a third party

The court treated GRE 1002 as the baseline: to prove the contents of a recording, the original is required. But GRE 1004(1) creates an exception where originals are lost or destroyed, unless the proponent lost/destroyed them in bad faith.

The decisive move was conceptual: the court separated (i) the original surveillance system footage (held by Mobil/Secure Safe and overwritten by the system) from (ii) the detective’s duplicate “working copy” on a personal phone (deleted by the detective).

On the original, the court followed State v. Nelsen: when a third party destroys evidence not acting as the government’s agent and not at the government’s direction, the government has not “destroyed” the original for Rule 1004(1) purposes—even if police were negligent in failing to secure it before automatic deletion. This mattered because GRE 1004(1)’s exclusionary “bad faith” carve-out is triggered only when the proponent lost/destroyed the originals in bad faith.

C. No hierarchy of secondary evidence: the deleted duplicate did not bar testimony

Santos’s intuitive position was that if officers deleted the only copy, they should not be permitted to describe the video’s contents. The court rejected this under the modern evidentiary framework (consistent with Shorehaven Corp. v. Taitano): once Rule 1004(1) excuses the original, “other evidence” of contents is admissible without an internal ranking that requires a duplicate over testimony. The court acknowledged the common-law “degrees of secondary evidence” intuition but treated the GRE as having displaced that hierarchy.

Accordingly, even if the working copy had still existed, the prosecution was not compelled by GRE 1004(1) to introduce it rather than call witnesses who watched the footage.

D. Remedy and fairness: adverse inference instruction as the balancing tool

The opinion did not bless GPD’s conduct. Instead, it located the corrective mechanism outside GRE 1002/1004 exclusion: trial courts retain discretion to respond to willful destruction (and even to address negligent conduct’s effects) by leveling the playing field. Drawing on Vodusek v. Bayliner Marine Corp. and cautioning with Arizona v. Youngblood and People v. Superior Court (Laxamana), the court emphasized that the government “proceeds at its own peril” when material evidence is destroyed.

Here, the jury received a “Lost or Destroyed Evidence” instruction allowing it to infer (but not requiring it to infer) that intentionally unpreserved video would have been unfavorable to the government. The court held this instruction cured any potential prejudice from allowing officers to testify.

3.3. Impact

• Clarifies “who destroyed the original” under GRE 1004(1): When surveillance footage is overwritten while in a private third party’s control, it is not automatically treated as government destruction merely because police failed to obtain it in time. This narrows the set of cases where the “bad faith” limitation in GRE 1004(1) blocks secondary evidence.
• Affirms the “no hierarchy” principle for secondary evidence in Guam: Parties cannot force exclusion merely by arguing that a more reliable form of secondary evidence (e.g., a duplicate) should have been introduced; once GRE 1004 is satisfied, testimony may be admissible notwithstanding the availability (or prior availability) of a duplicate.
• Channels disputes into remedial instructions and sanctions rather than categorical exclusion: The decision signals that the evidentiary rules (GRE 1002/1004) and the court’s fairness toolbox (adverse inference and other sanctions) serve different functions. Defendants should litigate spoliation-type relief even when best-evidence exclusion is unavailable.
• Practical consequences for law enforcement practice: Although the court affirmed, the opinion’s warnings—backed by citations like People v. Superior Court (Laxamana)—create litigation risk for agencies that rely on informal “working copies” or fail to secure time-sensitive third-party surveillance promptly. Future cases may test the boundary between negligence, willfulness, and constitutional due process.

4. Complex Concepts Simplified

• Best evidence rule (GRE 1002): If you want to prove what a video (or writing/recording) shows, you normally must produce the original video rather than rely on someone’s description of it.
• Exception for lost/destroyed originals (GRE 1004(1)): If all originals are lost or destroyed, other proof (like testimony) may be used—unless the party offering that proof destroyed the originals in bad faith.
• Original vs. duplicate: The “original” is the source recording as maintained by the system. A “duplicate” is a copy (here, a phone recording of the screen). This case treats destruction of the original and destruction of a duplicate differently under GRE 1004(1).
• No hierarchy of secondary evidence: Once the rules allow “other evidence” because the original is unavailable, the court generally does not require the “best” available secondary form (e.g., it won’t require a copy instead of testimony).
• Adverse inference instruction: A jury instruction allowing jurors to infer that missing evidence would have hurt the party responsible for not preserving it—used to offset unfairness from lost evidence.
• Bad faith vs. negligence: Negligence is carelessness; bad faith implies intentional or dishonest conduct (or circumstances suggesting fabrication). Under GRE 1004(1), negligence alone typically does not block secondary evidence.

5. Conclusion

People of Guam v. Santos cements two practical evidentiary rules for Guam trial practice: (1) best-evidence objections can be preserved without magic words when the basis is apparent from context, and (2) under GRE 1004(1), when the original recording is destroyed by a third party, the prosecution may prove its contents through secondary evidence—including officer testimony—because Guam does not recognize a hierarchy among forms of secondary proof. At the same time, the opinion underscores that evidentiary admissibility does not immunize poor preservation practices: trial courts retain broad discretion to mitigate prejudice through adverse inference instructions and other responses when government conduct contributes to the evidentiary gap.