EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, April 4, 2013

Contents May Have Shifted: The Best Evidence Rule & the Truth of the Matter Asserted

Following up on yesterday's post, State v. Stramiello, 392 So.2d 425 (La. 1980), is actually a case in which a court -- the Supreme Court of Louisiana -- found that the Best Evidence Rule did not apply to a writing offered to impeach a witness rather than to prove the truth of the matter asserted. Like the dissent in the case, I disagree.

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April 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 3, 2013

You Can't Handle the Truth: The Best Evidence Rule, Impeachment, and the Truth of the Matter Asserted

Following up on yesterday's post, Onontario of Florida, Inc. v. R. P. Trucking Co., Inc., 399 So.2d 1117 (Fla.App. 1981), is another example of a court improperly conflating the rule against hearsay and teh Best Evidence Rule. I also think that it provides an odd but compelling example of why the Best Evidence Rule applies to documents even when the proponent is not seeking to prove the truth of the matter asserted in the document. 

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April 3, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 2, 2013

You've Got Mail: D.C. Court of Appeals Finds Best Evidence Rule Inapplicable to E-mail Not Offered to Prove Truth

Following up on yesterday's post about the differing scopes of the rule against hearsay and the Best Evidence Rule, I disagree with the opinion of the District of Columbia Court of Appeals in Abulqasim v. Mahmoud, 49 A.3d 828 (D.C. 2012).

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April 2, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, April 1, 2013

The Rule Against Hearsay, the Best Evidence Rule, and the Truth of the Matter Asserted

Dan is watching television at his house when he allegedly receives a text message from his friend Fred that says, "I saw Vince walking toward your house a few minutes ago with an angry look in his eyes." Vince eventually arrives at Dan's house and knocks on the front door. After Dan opens the front door, there is a physical altercation between the two men. Vince eventually sues Dan for battery. Dan claims that he was acting in self-defense. To prove that he was acting in self-defense, Dan seeks to testify regarding the text message that Fred sent to him to demonstrate that he was in reasonable apprehension of Vince. Federal Rule of Evidence 801(c) defines hearsay as 

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Meanwhile, Federal Rule of Evidence 802, the rule against hearsay, states that

Hearsay is not admissible unless any of the following provides otherwise:  

•a federal statute;

•these rules; or

•other rules prescribed by the Supreme Court.

Moreover, Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

So, does Dan's testimony implicate the rule against hearsay? Does it implicate the Best Evidence Rule? Many would answer both questions in the negative. With regard to the Best Evidence Rule, I disagree.

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April 1, 2013 | Permalink | Comments (2) | TrackBack (0)

Prosecution-as-Proponent?: Should Rule 1004(a) Apply When an Alleged Victim Intentionally Destroys an Original?

Last week, I posted an entry about a case that involved the following fact pattern:

-Defendant is charged with raping Victim;
-Defendant and Victim had exchanged text messages;
-Victim was afraid text messages would be discovered on her phone, so she deleted them;
-Before deleting the messages, Victim re-wrote them in her diary;
-At trial, Victim testified that she didn't remember what Defendant had texted her;
-Trial court allowed Victim to read diary entries as recorded recollections;
-After he's convicted, Defendant appeals, claiming Best Evidence Rule violation.


In a follow-up post, I then asked whether this was proper under Federal Rule of Evidence 1004(a).

The Best Evidence Rule requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original at trial or account for its nonproduction. One way to account for the nonproduction of an original is, pursuant to Rule 1004(a), if "all the originals are lost or destroyed, and not by the proponent acting in bad faith...." In the above fact pattern, because the prosecution and not the alleged victim is the proponent of the evidence, Rule 1004(a) is arguably satisfied. I argued against such a strict reading of Rule 1004(a) in my follow-up post, and I think that I have come up with a hypothetical that demonstrates the cause of my discomfort.

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April 1, 2013 | Permalink | Comments (1) | TrackBack (0)