Thursday, April 11, 2013
My New Essay: Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay
Following up on several of my recent posts, I just finished the draft of a short essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay. That essay is available for download on SSRN. Here is the abstract:
Vince brings a battery action against Dan based upon an encounter between the two men. Dan claims that he was acting in self-defense and wants to testify that Ed sent him the following text message minutes before the encounter: “Vince is coming to see you to collect on that drug debt that you owe him.” Dan could argue that he is offering the statement not to prove the truth of the matter asserted but to prove its “effect on the listener,” making it nonhearsay Specifically, Dan could claim that he is offering the statement to prove that, regardless of whether Ed was being honest and/or accurate when he made the statement, Dan had every reason to believe the statement, placing him in reasonable apprehension of Vince.
Assume, however, that Dan deletes Ed’s message after the altercation because it mentions a drug debt, which could lead to Dan being investigated for drug-related crimes. If Dan wants to testify concerning the text message to prove reasonable apprehension, there is no hearsay problem, but is there a Best Evidence problem? Most courts answer this question in the negative by conflating the rule against hearsay and the Best Evidence Rule and concluding that the Best Evidence Rule is not applicable if secondary evidence concerning a writing is not offered to prove the truth of the matter asserted. This essay contends that this conflation reflects a fundamental misunderstanding of the Best Evidence Rule and that courts must disentangle that Rule from the rule against hearsay.