Wednesday, April 10, 2013
After searching high and low, I think that I have found a court opinion that at least makes some attempt to explicitly disentangle the rule against hearsay and the Best Evidence Rule. That opinion is Kroh v. Kroh, 567 S.E.2d 760 (N.C.App. 2002), the rare opinion that deals with the intersection between the rule against hearsay, the Best Evidence Rule, and bestiality.
In Kroh, a husband, Thomas Kroh, brought an action against his wife, Teresa Kroh, claiming that she had engaged in illegal wiretapping of his in-home conversations and actions. After the trial court found for the husband, the wife appealed, claiming, inter alia, that the trial court erred in precluding her from testifying concerning certain veterinary reports.
The opinion of the Court of Appeals of North Carolina is short on details regarding the reports, which is probably for the best, but the wife claimed that they "support[ed] her claims of bestiality against her husband," presumably against the family pet. The problem for the wife, however, was that she did not produce those reports at trial. Instead, she sought to testify concerning their contents at trial, with the the trial judge precluding such testimony.
On appeal, the wife claimed that this ruling was erroneous, asserting that the veterinary reports were not hearsay because she was not seeking to prove the truth of the matter asserted in them: that the husband was actually engaging in bestiality. Instead, she was was testifying to explain the effect that those reports had on her state of mind when she began to wiretap her husbands in-home conversations and actions.
The Court of Appeals of North Carolina seemed to credit this opinion but then found that the wife's testimony was nonetheless inadmissible under the Best Evidence Rule and the authentication rule:
Since the proffered reports contained the notes of veterinarians, they were not relevant to Teresa Kroh's state of mind except to the extent that she read them and interpreted them. As she was offering these reports into evidence to prove their contents (and how she interpreted those contents, regardless of their actual truth or falsity), Teresa Kroh was required to produce the original reports (under Rule 1002) and properly authenticate them (under Rule 901). Since she failed to do so, these reports were properly excluded by the trial court.
I certainly agree with the court on Best Evidence grounds. If a party is trying to prove the effect that a document had on her state of mind, the party will have to prove the content of that document to prove why it had the relevant effect on her state of mind. This is why I think that statements not offered to prove the truth of the matter asserted implicate the Best Evidence Rule even if they don't implicate the rule against hearsay.
On the other hand, I actually disagree with the court that a party has to authenticate documents when they only offered to prove the effect on the reader. Presumably, the court was stating that the wife had to prove that the veterinary reports were in fact veterinary reports to testify concerning them on trial. But I don't see why a party should have to authenticate documents if she is only offering them to prove their effect on her rather than the truth of the matter asserted in them. True, if the wife herself had fabricated the reports, she wouldn't be able to testify concerning them. But let's assume that the veterinary reports were an elaborate prank played on the husband by a friend or an elaborate prank played on the wife by the husband. If the wife is merely seeking to prove the effect that the reports had on her state of mind, it shouldn't matter whether the reports were the genuine article or real fakes.