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Univ. of South Carolina School of Law

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Tuesday, April 9, 2013

Rule 1008(a) & the Disentangling of the Rule Against Hearsay and the Best Evidence Rule

When I am teaching the rule against hearsay to students, one of the things that I always tell them is that the rule is inapplicable when the question is not whether a statement was honest and/or accurate but merely "whether the statement was made at all." Brady v. Murphy Kjos, 628 F.3d 1000 (8th Cir. 2011). When we think about this, it makes sense. Consider the case in which Fred allegedly texts Dan, "Vince is coming to see you to collect the drug debt that you owe him." Assume that a physical altercation between Vince and Dan ensues and that Vince then brings a civil battery action against Dan. If Dan wants to prove that Vince was in fact coming to see him to collect a drug debt, his testimony concerning the text message would be covered by the rule against hearsay because he would be seeking to prove the truth of the matter asserted in the text message. And the reason why Dan's testimony about the text message would be inadmissible in the absence of an exception or exclusion would be because we would be concerned about Fred's honesty and/or accuracy when he sent the text message. Maybe he was lying. Maybe he was mistaken, and Vince wasn't actually going to see Dan.

Conversely, if Dan wants to testify that Fred's text message placed him in reasonable apprehension of Vince, Dan's testimony would not implicate the rule against hearsay. Dan's claim in essence would be that regardless of whether Fred was being honest and/or accurate in sending the text message, he had every reason to believe it and thus be in reasonable apprehension of Vince. In other words, the only question for jurors would be whether they believed that the statement was made. Therefore, Dan's testimony about the text message would be no different than if Dan wanted to testify that he heard a dog bark or an alarm clock. If Dan wanted to testify that he heard a dog bark or an alarm clock, there would be no hearsay issue because a dog and an alarm clock are not humans who can be put on the witness stand and subjected to the oath and cross-examination. The question for the jury would thus simply be whether Dan in fact heard the dog or the alarm clock. The same goes in the reasonable apprehension situation. The question for the jury would simply be whether Dan in fact received the text message from Fred, not whether Fred was being honest and/or accurate.

This takes me back to the improper conflation of the rule against hearsay and the Best Evidence Rule, and I think that Federal Rule of Evidence 1008  gives us another reason to disentangle these two rules.

Federal Rule of Evidence 1008 provides that

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:  

(a) an asserted writing, recording, or photograph ever existed;  

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

So, Rule 1008 tells us which Best Evidence issues are to be resolved by the judge and which Best Evidence issues are to be resolved by the jury. And, Rule 1008(a) tells us that one of the issues that comes up in a Best Evidence analaysis is whether "an asserted writing, recording, or photograph ever existed..." In other words, unlike the rule against hearsay, the Best Evidence Rule is concerned in certain circumstances with "whether the statement was made at all." For instance, here is a hypothetical from my eLangdell Best Evidence Chapter:

Hypothetical 18

A former tenant sues Andrew Klopman, his former landlord, for personal injuries connected to exposure to lead paint at the property the tenant rented from Klopman. Klopman brings a declaratory judgment action against Zurich American Insurance Company of Illinois, seeking a declaration that the insurance company is obligated to defend and indemnify him in the lead paint lawsuit pursuant to his insurance policy. The insurance company claims that it never issued such an insurance policy to him, and Klopman claims that the insurance policy was destroyed in a basement flood, meaning that he can testify about the contents of the policy pursuant to Rule 1004(a). The action proceeds to a jury trial. Who decides whether the insurance company issued a policy to Klopman, the judge or the jury? Cf. Klopman v. Zurich American Ins. Co. of Illinois, 233 Fed. App’x. 256 (4th Cir. 2007).

As this example and Rule 1008(a) make clear, the Best Evidence Rule, unlike the rule against hearsay, is concerned in certain circumstances with "whether the statement was made at all."

Moreover, this example is interesting for another reason. Words of contract are not thought to implicate the rule against hearsay because they are not offered to prove the truth of the matter asserted; instead, they have independent legal significance. Assume that Dan agrees to paint Paul's house for $500. It doesn't matter whether Dan never has any intention to paint Paul's house. By stating that he would paint Paul's house for $500, he has entered into a legally binding contact that can be enforced against him in court.

Contractual disputes are at the very center of the Best Evidence Rule, with a party claiming breach of contract having to produce the contract or adequately explain its nonproduction. And yet, if we take some courts at their word that the Best Evidence Rule is inapplicable when a party is not seeking to prove the truth of the matter asserted in a writing, that would mean that the Rule would not apply to contractual disputes. 

-CM

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