Tuesday, April 2, 2013
You've Got Mail: D.C. Court of Appeals Finds Best Evidence Rule Inapplicable to E-mail Not Offered to Prove Truth
Following up on yesterday's post about the differing scopes of the rule against hearsay and the Best Evidence Rule, I disagree with the opinion of the District of Columbia Court of Appeals in Abulqasim v. Mahmoud, 49 A.3d 828 (D.C. 2012).In Mahmoud, Tarik A. Abulqasim challenged the award of absolute divorce from Hadia K. Mahmoud and the distribution of marital property granted by the Superior Court. At trial, Mahmoud testified that she
found a "torn up email from Tarik [Abulqasim] addressed to [Mahmoud's sister Hagir]" that discussed Abulqasim's "love for [Hagir]" and a "plan" to have Hagir "leave Sudan and meet [Abulqasim] in Egypt." Mahmoud testified that she presented the email to Hagir, who admitted that she and Abulqasim "[we]re in love and [Abulqasim was] going to marry her as soon as he divorce[d] [Mahmoud]." divorce[d] [Mahmoud]."
According to Mahmoud, the e-mail and the exchange with her sister were what led her to leave Sudan with the couple's children and go to D.C.
After the Superior Court awarded absolute divorce and distributed marital property, Abulqasim appealed, claiming, inter alia,
that the trial court abused its discretion by admitting testimony about [the] email from Abulqasim to Hagir that was not itself introduced into evidence, which he claims was in violation of the best evidence rule. The email was important, he claim[ed], because it formed the basis of the trial court's finding that Abulqasim had an "improper relationship" with Hagir which, according to appellant, was the reason for the trial court's distribution of the marital assets to Mahmoud.
While D.C. does not have codified rules of evidence, it applies a version of the Best Evidence Rule very similar to Federal Rule of Evidence 1002, which 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.
In rejecting Abulqasim's Best Evidence argument, the District of Columbia Court of Appeals found that
At trial, Mahmoud testified that she found a "torn up email" from Abulqasim to Hagir that discussed Abulqasim's "love for [Hagir]" and a "plan" to have Hagir "leave Sudan and meet [Abulqasim] in Egypt." Mahmoud testified that when she confronted Hagir, she confirmed the existence of the email and the veracity of its contents. Abulqasim argues that Mahmoud failed to satisfy her burden of proving that she performed a "diligent search for the email," and that her only explanation—that she "ha[d] a whole lot of stuff stolen...from [her] while [she] was in Sudan...and I believe one of them [wa]s the email"—was insufficient. In admitting Mahmoud's testimony concerning the email, the court recognized that testimony about the contents of the writing was hearsay, but ruled that it was not being admitted to prove the truth of a romantic relationship between Abulqasim and his sister-in-law. The court exercised reasonable discretion by admitting the testimony as evidence only to the extent it explained Mahmoud's actions and not as evidence "that...could...come in for the truth of the matter asserted"—the matter asserted being that Hagir and Abulqasim were having a romantic relationship. Thus, the best evidence rule did not apply.
This is what I consider to be an improper conflation of the rule against hearsay and the Best Evidence Rule. The rule against hearsay precludes the admission of statements offered to prove the truth of the matter asserted. Because Mahmoud did not testify about the e-mail to prove the truth of the matter asserted in the e-mail -- that Abulqasim loved Hagir and was going to meet her in Egypt -- it did not implicate the rule against hearsay.
Conversely, under the way that I read the Best Evidence Rule, it is not concerned with parties trying to prove the truth of the matter asserted in a writing, recording, or photograph. Instead, it is concerned with a party simply trying to prove the matter asserted, i.e., the content of the writing, recording, or photograph. And I would argue that Mahmoud clearly was trying to prove the content of the e-mail: that Abulqaism said he loved Hagir and was going to meet her in Egypt. Indeed, she had to be proving the content of the e-mail. If the content of the e-mail was a grocery list, a restuarant recommendation, or something else benign, it wouldn't have explained Mahmoud's decision to go to D.C. with the couple's children. Therefore, for the e-mail to be relevant, it had to be a statement of affection for Mahmoud's sister, regardless of whether the sentiment in the e-mail was genuine, feigned, or mistaken. As such, I believe that it was covered by the Best Evidence Rule.