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Univ. of South Carolina School of Law

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Monday, April 15, 2013

Controlling Share, Take 2: When is a Writing, Recording, or Photograph Not Closely Related to a Controlling Issue?

On Friday, I wrote about Federal Rule of Evidence 1004(d), which states that

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.

I then sought to answer the question of when a writing, recording or photograph is not closely releated to a controlling issue by looking at the Advisory Committee's Note to Rule 1004, which tells us the following:

Paragraph ([d]). While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick §200, p. 412, n. 1.

As noted in that post, Little Rock Publishing Co. does not do a good job of explaining Rule 1004(d). Is Carroll any better?

In Carroll, the plaintiff, Robert Carroll, successfuly sued the Chicago City Rail Company after he was injured on its streetcar. The defendant thereafter appealed, prompting the Supreme Court of Illinois to find the following:

[Plaintiff] testified that he had a transfer, and his son testified that when he was brought home a transfer was taken out of his pocket. No witness denied that he had a transfer, or that he received it in the regular way. It is now urged that because a transfer paper itself was not offered in evidence, and is not in the record, that is fatal to [plaintiff's] case. We do not think so. The action was not upon the transfer paper. It was a mere incident to [plaintiff]'s right. It was sufficient that the undisputed evidence showed, or tended to show, that [plaintiff] did receive a transfer, and in consequence of that, and by virtue of it, was a passenger on both lines of [plaintiff] while making a continuous journey to his destination.

As with the Little Rock Publishing Co. opinion, the Carroll opinion doesn't really explain or justify Rule 1004(d). What was the reason for the Best Evidence Rule not applying to the plaintiff's testimony that the transfer was a mere incident to ride the defendant's streetcar(s) in peace? Or was the Best Evidence Rule inapplicable because there was no dispute that the plaintiff in fact received a transfer? In other words, if there were a dispute concerning whether the plaintiff received a transfer, would his testimony then have triggered a Best Evidence analysis? The opinion of the Supreme Court of Illinois is unclear and unhelpful to us in understaning Rule 1004(d).

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/04/on-friday-i-wrote-aboutfederal-rule-of-evidence-1004d-whichstates-that-an-original-is-not-required-and-other-evidence.html

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