EvidenceProf Blog

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

Thursday, April 25, 2013

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?

In Mega Child Care, Inc. v. Texas Dept. of Protective and Regulatory Services, 29 S.W.3d 303 (Tex.App.–Houston [14 Dist.] 2000), a child care facility had its license revoked, and the Department of Protective and Regulatory Services ("DPRS") thereafter sought an injunction against the facility after it allegedly continued to operate after its license was revoked. When the trial court granted the injunction, the facility appealed.

One of the grounds for the facility's appeal was testimony by DPRS investigator Ms. Waring. This "testimony occupie[d] several pages of the record," and it included the following statements by Ms. Warning:

I asked were—were there any other children in care besides the one infant. She again pointed me down to the infant room area. I went down there.  

* * *

I asked if there was any paper work on the children, and she pointed to a—an attachment to the file cabinet that had some files in it.

* * *

I looked at the paperwork that was there. There were three files on three different children. The information that was in the files did not—with their date of birth—did not correspond to the ages of the children that I saw

The facility argued that this testimony violated the Best Evidence Rule because DPRS did not produce the original paperwork or account for its nonproduction. The Court of Appeals of Texas, Houston, disagreed, concluding that,

In the third statement, Ms. Waring's statement makes reference to a paperwork discrepancy. Accordingly, this testimony alludes to the contents of a writing. However, if the writing is not closely related to a controlling issue in the case, its contents may be admissible without the necessity of offering the original into evidence. See TEX.R. EVID. 1004(e) [Texas' counterpart to Federal Rule of Evidence 1004(d)]. Here again, the issue in dispute was whether Mega Child Care was open for business after its license had been revoked. Ms. Waring's observations confirm that Mega Child Care was open for business. Whether its paperwork was in order was entirely collateral to the primary issue before the trial court.

Ok, so what was the probative value of the "several pages" worth of testimony given by Waring? According to the court, Waring's testimony regarding her observations was sufficient to "confirm that Mega Child Care was open for business." So, evidence concerning the paperwork was not necessary to prove that the facility was open for business. Indeed, if the evidence were necessary to prove that the facility was open for business, it would be "closely related to a controlling issue." So, the probative value of the evidence was minimal at best.

So, what about unfair prejudice and confusing/misleading the jury? The evidence tended to show not just that the facility was open for business but also that it was serving at least three children. It also showed that the record keeping at the facility was inconsistent, calling into question the accuracy and credibility of the facility. In other words, the evidence was at least somewhat misleading and unfairly prejudicial. Why, then, not exclude it under Rule 403?



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As far as I can tell, there is nothing in the opinion on this issue that suggests a 403 objection was made by the party opposing admission.

Posted by: CE | Apr 25, 2013 2:25:24 PM

Seems to me that the testimony could be admissible because the files were in the possession of the objecting party. 1004(c) Of course, the response to that is probably that the objecting party was not put on notice by the pleadings or otherwise that the originals would be put in issue at trial.

Posted by: Fred Moss | May 7, 2013 11:13:32 AM

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