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Univ. of South Carolina School of Law

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Friday, April 19, 2013

Faith No More?: Michigan Court Dicta Implies Negligent Loss of Originals Creates Best Evidence Problem

Similar to its federal counterpartMichigan Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

And, similar to its federal counterpartMichigan Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....

But what about if all originals were lost or destroyed based upon negligence? In that case, should the proponent be able to prove their contents through secondary evidence? According to dicta from People v. Thompson, 314 N.W.2d 606 (Mich.App. 1981), the answer is seemingly "no."

In Thompson, Lewis Thompson was convicted by a  jury in 1976 of assault with intent to do great bodily harm less than murder. Facts adduced at trial indicated that

The complainant had received various threatening letters from the defendant while he was incarcerated at Jackson Prison. The complainant had saved these letters, or some of them. She moved several times while defendant was in prison, the last time after her residence had been ransacked after a breaking and entering. She testified that many of her papers and personal effects were strewn about on the floor and that she threw much of this out-including, apparently, the letters. Also, the witness never informed the prosecutor about the existence of the letters until the week immediately preceding trial.

After he was convicted, Thompson appealed, claiming, inter alia, that the complainant's testimony about the content of these letters was admitted in violation of the Best Evidence Rule. The Court of Appeals of Michigan disagreed, stating

We reject this argument since neither the negligence nor bad faith of either the complainant or prosecutor caused the destruction of the letters....[T]he witness, not knowing that the letters were or would later be important, discarded them several months prior to trial and prior to having informed the police or prosecution about their very existence. We find these facts sufficient under MRE 1004 to allow the complainant to testify as to the contents of the letters (emphasis added).

So, was this just offhanded dicta, or does Michigan law really provide that secondary evidence can't be used to prove the content of an original lost or destroyed through negligence? I don't know.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/04/negligence-nor-bad-faith-people-v-thompson111-michapp-324-314-nw2d-606michapp-1981.html

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Comments

I practice in Michigan, and think the courts will regard this as holding, not dicta. First, the "proponent" of the evidence was the prosecutor, not the witness. Second, this interpretation helps convict someone, instead of acquit the defendant. The Court of Appeals is widely perceived to decide the outcome it wants, and then find a rationale to support the desired result, instead of going where the law takes it. Third, the result might be different, if this had been a civil case for some tort, where the one who lost the letters would have been the proponent of the evidence. Michigan tends to insulate the government from the wrongdoings of government witnesses.

Posted by: Greg Jones | Apr 19, 2013 7:00:02 AM

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