Tuesday, April 16, 2013
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the writing, recording, or photograph is not closely related to a controlling issue.
In those posts, I explained why I don't think that either of the cases cited in the Advisory Committee's Note to Rule 1004 provides a good example of the application of Rule 1004(d). I do think, however, that Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), provides a good example of when a writing is not closely related to a controlling issue.Here's the relevant portion of my eLangdell Chapter on the Best Evidence Rule:
In Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), a movie theater patron who was arrested for public intoxication and resisting arrest brought a Section 1983 action against the municipality and his arresting officer for excessive force. On appeal, after the district court awarded damages to the plaintiff, the arresting officer alleged that the district court erred by allowing Jackson to question a witness about the contents of a flyer describing the arrest and “asking any witnesses to contact the person named on the flyer.” Id. at 1109-10. The Eighth Circuit determined that the Best Evidence Rule did not preclude the testimony despite the nonproduction of the flyer because, inter alia, the contents of the flyer were “collateral to the principal issue in the trial.” Id. at 1110.