EvidenceProf Blog

Leisure Suit Larry & the IRS: U.S. Tax Court Uses Rule 1003 to Exclude Altered Duplicate

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

It is rare that a duplicate is deemed inadmissible under Rule 1003, but that is exactly what happened in the recent case, Heinbockel v. C.I.R., 2013 WL 1953732 (U.S.Tax.Ct. 2013).

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This is a Knife: Florida Court Finds Statement About Knife Qualified as an Excited Utterance

Similar to its federal counterpart, Section 90.803(2) of the Florida Statutes provides an exception to the rule against hearsay for

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

You don't much more of a textbook example of an excited utterance than the one found in the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Thomas v. State, 2013 WL 1980256 (Fla.App. 4 Dist. 2013).

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Learned Person: The Learned Treatise Exception, Impeachment & the Truth of the Matter Asserted

Similar to its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay 

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In State v. Thim, 2013 WL 1942975 (Minn.App. 2013), the defendant claimed that he was using Rule 803(18) solely to impeach a witness for the prosecution. Was he correct?

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The Privileged Few: Does Federal Rule of Evidence 408 Create a Settlement Privilege?

Federal Rule of Evidence 408 states:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

In United States v. Dish Network, L.L.C., 2013 WL 1876419 (C.D.Ill. 2013), the Central District of Illinois addressed an interesting question under Rule 408: Does the Rule merely deem evidence of settlement negotiations inadmissible at trial, or does it also deem such evidence privileged?

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Article of Interest: F. Pat Hubbard's The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force

My colleague, F. Pat Hubbard, has a terrific new article, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force (forthcoming George Mason Law Review). Professor Hubbard focuses upon three situations in which the State authorizes citizens to use deadly force: (1) executing a citizen's arrest or preventing a certain type of crime; (2) protecting one's home or automobile pursuant to the Castle Doctrine; and (3) protecting oneself pursuant to "stand your ground" laws. And his thesis is that (1) the State has a monopoly on deadly force; (2) "[i]n our constitutional system of legitimacy, there are limits on the state’s power to authorize the use of deadly force;" and (3) "most states have adopted unconstitutionally overbroad authorizations of the use of deadly force by citizens."

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Plea Plea Me: Middle District of Pennsylvania Finds Rule 410 Argument Unavailing for 2 Reasons

Federal Rule of Evidence 410 states

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

In United States v. Bard, 2013 WL 1882984 (M.D.Pa. 2013), the defendant claimed a violation of Rule 410. There were two problems with his argument.

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Picture Perfect?: Does the Officer Who Created a Photo Array Have to Testify to Satisfy the Confrontation Clause?

When police have a suspect and an eyewitness, they often try to get the eyewitness to pick the suspect out of a photo array.

Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photo-graphs as the perpetrator. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the defendant.

Similar to its federal counterpart, Texas Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

In Haq v. State, 2013 WL 1890260 (Tex.App.-Houston [1 Dist.] 2013), the defendant claimed that the trial court erred in allowing the admission of evidence concerning a photo array because the officer who created the array did not testify, meaning that there was a failure of authentication. So, how did the court rule, and what would have happened if the defendant made a Confrontation Clause objection?

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The Jig is Up: Post-Arrest Statements & the Co-Conspirator Admission Rule

Similar to its federal counterpart, New Hampshire Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 

As the language of this Rule and the recent opinion of the Supreme Court of New Hampshire in State v. Rodriguez, 2013 WL 1800059 (N.H. 2013), make clear, Rule 801(d)(2)(E) does not apply to post-arrest statements.

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Inconsistent Consistency: Rule 608(b) & Proving Prior Inconsistent Statements Through Extrinsic Evidence

Federal Rule of Evidence 608(b) states:

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

As the recent opinion of the Fourth Circuit in United States v. English, 2013 WL 1832106 (4th Cir. 2013), makes clear, however, this limitation on the admissibility of extrinsic evidence only applies when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness. 

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Down the Toilet: 1st Circuit Find Evidence Concerning Toilet Repair Inadmissible Subsequent Remedial Measure Evidence

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  

negligence;

culpable conduct;

a defect in a product or its design;

or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

In many cases, the application of Rule 407 proves fatal for a plaintiff's claim, and that was certainly the case in the recent opinion of the First Circuit in Nieves-Romero v. United States, 2013 WL 1849159 (1st Cir. 2013).

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Blogging Hiatus For the Week

I am taking this week off for exam grading and will be back with new posts starting on May 6th.

-CM

Adverse Reaction: Should a Court Give an Adverse Inference Instruction if a Party Barely Satisfies Rule 1004(a)?

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...all the originals are lost or destroyed, and not by the proponent acting in bad faith....

As I have been writing a good deal about the Best Evidence Rule recently, a question has arisen: What exactly constitutes bad faith for Rule 1004(a) purposes? Obviously, if a party destroys an original writing, recording, or photograph with the specific intent of preventing the opposing party from being able to introduce it at trial, that party has acted in bad faith. But what if a party intentionally destroys an original for purposes other than depriving the opposing party from being able to introduce it at trial? In an example I gave a couple of days ago, a wife deleted a text message to protect her husband's reputation (because it mentioned smoking weed) rather than to prevent the defendant from introducing it in a wrongful death action. Is that "bad faith" destruction under Rule 1004(a)? And what about if a party destroys an original due to gross negligence? As I have noted, at least court has implied that such negligent destruction might prevent a party from relying on Rule 1004(a). 

It seems that the definition of "bad faith" under Rule 1004(a) is very much unsettled. For today's purposes, let's assume that a court applies a very narrow definition of "bad faith." The opinion of the United States District Court for the Eastern District of New York in Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009), raises an interesting question: If a party's destruction of an original isn't quite "bad faith," can't/should the court still give an adverse inference instruction?

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Loss of Control: Why Should Evidence Admissible Under Rule 1004(d) be Admissible Under Rule 403?

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1004(d) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the writing, recording, or photograph is not closely related to a controlling issue.

Meanwhile, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, here's my question: Shouldn't a court (almost) always deem secondary evidence covered by Rule 1004(d) inadmissible under Rule 403?

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More Adventures in the Best Evidence Trade: The Best Evidence Rule & Disputed Facts

In talking with my colleague, Jim Flanagan about my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, we realized that all of the examples that I had given involved mostly undisputed facts and mere disputes as to credibility. Dan and Vince get into a fight, and the only question is whether Dan got a text message placing him in reasonable apprehension of Vince. A wife leaves her husband and returns with the couple's children to the United States, and the only question is whether she read a copy of an e-mail in which the husband professed his love for the wife's sister. A wife starts conducting surveillance on her husband, and the only question is whether she read notes from a veterinarian alleging that the husband had engaged in acts of bestiality against the family dog.

Upon discussing the matter, though, I think that I came up with a pretty good example of a case in which I think that the Best Evidence Rule should apply to evidence/testimony concerning a writing (1) not offered to prove the truth of the matter asserted, but (2) offered to prove disputed facts.

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Simply The Best: The Best Evidence Rule as a Non-Exception to the Rule Against Hearsay

In my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, I discuss how courts have improperly conflated the rule against hearsay by concluding that evidence/testimony offered to prove something other than the truth of the matter asserted in a document doesn't violate the rule against hearsay...and thus also doesn't violate the Best Evidence Rule. My point in the essay is that the rule against hearsay and the Best Evidence Rule are concerned with similar but distinct things. One way to prove this is to look at the inverse situation. If evidence concerning the contents of a document satisfies the Best Evidence Rule, does it automatically satisfy the rule against hearsay? The answer, of course, is "no."

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You Got It: Court Finds No Best Evidence Problem Because Defendant Had Original

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1004(c) (formerly Federal Rule of Evidence 1004(3)) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing....

Rule 1004(c) doesn't come up terribly often, but it was used in Barraza v. Housing Authority of City of Seattle, 2006 WL 1663702 (W.D.Wash. 2006).

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Faith No More?: Michigan Court Dicta Implies Negligent Loss of Originals Creates Best Evidence Problem

Similar to its federal counterpart, Michigan Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

And, similar to its federal counterpart, Michigan Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....

But what about if all originals were lost or destroyed based upon negligence? In that case, should the proponent be able to prove their contents through secondary evidence? According to dicta from People v. Thompson, 314 N.W.2d 606 (Mich.App. 1981), the answer is seemingly "no."

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NCIS Hawai'i: Court of Appeals of Hawai'i Finds Best Evidence Rule Violated by Testimony About Child Pornography

Similar to its federal counterpart, Hawai'i Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

It is rare that there is a Best Evidence Rule violation under Rule 1002, but In re "R" Children, 216 P.3d 127 (Hawai'i App. 2009), is just such a case

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Can You Hear Me Now?: Why Does Massachusetts' Best Evidence Rule Not Cover Audio Recordings?

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

As the opinion of the Appeals Court of Massachusetts in Commonwealth v. McKay, 853 N.E.2d 1098 (Mass.App.Ct. 2006), makes clear, Massachusetts' version of the Best Evidence Rule does not apply to audio recordings.

Continue reading "Can You Hear Me Now?: Why Does Massachusetts' Best Evidence Rule Not Cover Audio Recordings?"

Return of Collateral: Jackson v. Crews & Federal Rule of Evidence 1004(d)

On Friday and Monday, I wrote about Federal Rule of Evidence 1004(d), which states that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the writing, recording, or photograph is not closely related to a controlling issue.

In those posts, I explained why I don't think that either of the cases cited in the Advisory Committee's Note to Rule 1004 provides a good example of the application of Rule 1004(d). I do think, however, that Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), provides a good example of when a writing is not closely related to a controlling issue.

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