EvidenceProf Blog

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

Wednesday, April 24, 2013

More Adventures in the Best Evidence Trade: The Best Evidence Rule & Disputed Facts

In talking with my colleague, Jim Flanagan about my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, we realized that all of the examples that I had given involved mostly undisputed facts and mere disputes as to credibility. Dan and Vince get into a fight, and the only question is whether Dan got a text message placing him in reasonable apprehension of Vince. A wife leaves her husband and returns with the couple's children to the United States, and the only question is whether she read a copy of an e-mail in which the husband professed his love for the wife's sister. A wife starts conducting surveillance on her husband, and the only question is whether she read notes from a veterinarian alleging that the husband had engaged in acts of bestiality against the family dog.

Upon discussing the matter, though, I think that I came up with a pretty good example of a case in which I think that the Best Evidence Rule should apply to evidence/testimony concerning a writing (1) not offered to prove the truth of the matter asserted, but (2) offered to prove disputed facts.

Assume that Vince used to live at 555 Clark Street. Then, on April 24, 2013, his wife Wanda and he moved to 123 State Street. On April 24th, Vince allegedly sent an e-mail to Dan stating, "Just moved to 123 State Street. Wanna come over and smoke some weed?" Later that day, Vince turns up dead in his house. Wanda thereafter discovers the text message and deletes it because of the mention of drug use. Wanda also brings a wrongful death action against Dan.

Dan's defense at trial is that he had no idea that Vince moved to 123 State Street. In response, Wanda seeks to testify about the text message that Vince sent to Dan. Wanda could legitimately argue that her testimony would not be offered to prove the truth of the matter asserted in the e-mail: that Vince in fact moved to 123 State. Instead, her testimony would be offered to prove the likely effect on the reader, i.e., to prove that Dan knew that Vince now lived at 123 State Street. Wanda could thereafter, of course, present other evidence about Vince and she moving to the new address.

So, here we have a case in which Wanda's testimony would not implicate the rule against hearsay. Most courts would also hold that Wanda's testimony does not implicate the Best Evidence Rule because it is not being offered to prove the truth of the matter asserted in the text message. And yet, this text message would seemingly be the most important piece of evidence at trial because it goes to the disputed fact at trial: whether Dan even knew where Vince lived. Therefore, because Wanda destroyed the text message in bad faith, I would argue that her testimony should be precluded under the Best Evidence Rule.



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I totally agree with you. Let me give a different example--a contract. A contract is not hearsay because it's very words do not have truth value , but "independant legal effect". A contract ,however, is the quintessential example of a document to which the BER applies. Conflating 801 with 1002 seems just nonsense--or (as is all too often the case as I age) am I just missing something? John Mitchell

Posted by: John Mitchell | Apr 30, 2013 2:25:36 PM

I agree. One of the points that I make in my essay


is that the logical extension of courts' arguments in this regard is that the Best Evidence Rule doesn't cover contracts (and deeds), which makes no sense.

Posted by: Colin Miller | Apr 30, 2013 3:49:53 PM

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