EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

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."

Continue reading

April 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 18, 2013

NCIS Hawai'i: Court of Appeals of Hawai'i Finds Best Evidence Rule Violated by Testimony About Child Pornography

Similar to its federal counterpartHawai'i Rule of Evidence 1002 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.

It is rare that there is a Best Evidence Rule violation under Rule 1002, but In re "R" Children, 216 P.3d 127 (Hawai'i App. 2009), is just such a case

Continue reading

April 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 17, 2013

Can You Hear Me Now?: Why Does Massachusetts' Best Evidence Rule Not Cover Audio Recordings?

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.

As the opinion of the Appeals Court of Massachusetts in Commonwealth v. McKay, 853 N.E.2d 1098 (Mass.App.Ct. 2006), makes clear, Massachusetts' version of the Best Evidence Rule does not apply to audio recordings.

Continue reading

April 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 16, 2013

Return of Collateral: Jackson v. Crews & Federal Rule of Evidence 1004(d)

On Friday and Monday, 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.

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.

Continue reading

April 16, 2013 | Permalink | Comments (0) | TrackBack (0)

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 ยง200, 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?

Continue reading

April 15, 2013 | Permalink | Comments (0) | TrackBack (0)