EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, April 23, 2013

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."

In McInnins v. Fairfield Communities, Inc., 458 F.3d 1129 (10th Cir. 2006), Diane C. McInnis filed an employment discrimination suit against her former employer, Fairfield Communities, Inc., claiming retaliation in violation of 42 U.S.C. ยง 2000e. Part of McInnis' claim was that her supervisor, Michaeal Turolla, retaliated against her after she reported allegations of sexual harassment.

In response, Fairfield sought to introduce into evidence e-mails sent by Turolla, which it alleged proved that Turolla did not have a retaliatory motive but instead had legitimate beefs against McInnis. The Tenth Circuit deemed this e-mails inadmissible hearsay, prompting Fairfield to "argue[] that the exclusion of Turolla's emails prevented it from presenting "the best evidence of his true motive." In response, the Tenth Circuit noted that

Fed.R.Evid. 1002, known as the best evidence rule, states that "[t]o 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 Act of Congress." The best evidence rule is not an exception to the general rule excluding the admission of hearsay. Instead,  

[w]hile Rule 1002 limits the admissibility of evidence offered to prove the contents of a writing...satisfying Rule 1002 does not mean that the evidence in question is necessarily admissible. The evidence remains subject to other admissibility objections under the Evidence Rules and the Constitution. Specifically, the evidence frequently also raises admissibility issues under the rules regulating hearsay and authentication....

Therefore, Fairfield's claim that the emails are the best evidence of Turolla's motivation does not support its argument that the district court abused its discretion by excluding that evidence as hearsay.



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