Wednesday, April 3, 2013
You Can't Handle the Truth: The Best Evidence Rule, Impeachment, and the Truth of the Matter Asserted
Following up on yesterday's post, Onontario of Florida, Inc. v. R. P. Trucking Co., Inc., 399 So.2d 1117 (Fla.App. 1981), is another example of a court improperly conflating the rule against hearsay and teh Best Evidence Rule. I also think that it provides an odd but compelling example of why the Best Evidence Rule applies to documents even when the proponent is not seeking to prove the truth of the matter asserted in the document.In R. P. Trucking, the appellant sued the appellee for breach of contract. According to the District Court of Appeal of Florida, Fourth District,
Appellant offered into evidence exhibits which constituted a compilation typed by appellee's secretary from a daily log. Appellee objected on the ground that the original book and daily log were the best evidence. The trial court agreed with appellee that the best evidence rule applied and therefore only permitted the original into evidence. At the time of the offer appellee's owner was testifying, having been called as an adverse witness by appellant. Appellant's purpose for offering the two compilations instead of the original log was to show inconsistencies among them, thereby bearing on the credibility of the witness and the record keeping of his company. For impeachment purposes the exhibits should have been admitted. The best evidence rule is not applicable where the matter being offered is not used to prove the truth of statements contained therein.
So, first of all, I agree with the court's conclusion if not its reasoning. The point isn't that the appellant was using the compilations to impeach the appellee's owner rather than to prove the truth of the matter asserted in the compilations. That's the concern of the rule against hearsay. The point is that the appellant was using the compilations to prove the inconsistencies between compilation 1 and compilation 2. Indeed, that is the whole point of the Best Evidence Rule: that originals are prefereable because non-mechanical compilations/transcriptions can be mistaken or fabricated. In this sense, R. P. Trucking is an exemplification of the Best Evidence Rule because the appellant was using the 2 compilations to prove that such compilations are untrustworthy.
But let's tweak the facts of R. P. Trucking. Let's say that the appellee's owner was testifying about the appellee's quarterly profits. And let's say that, during discovery, the appellee had sent to the appellant a photocopy of its quarterly profit statement. Finally, let's say that the appellant then made a handmade copy of the quarterly profit statement. Now, at trial, after the appellee's owner testifies that the appellee's quarterly profit was $123,000, the appellant tries to impeach the owner with the handmade copy, in which the appellent recorded the appellant's profit as $133,000.
If the appellee objects on Best Evidence grounds, how should the court rule? I think that the clear answer is that the court should strike the question and require the appellant to produce the photocopy of the quarterly profit statement. But consider the language of the Florida court. Technically, the appellant is using the handmade copy of the quarterly profit statement to impeach the owner and not to prove the truth of the matter asserted, meaning that the Florida would find the handmade copy outside the scope of the Best Evidence Rule.