EvidenceProf Blog

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.

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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.

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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?

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Why Should You Publish in Online Law Review Supplements

Over at The Faculty Lounge, Jacqueline Lipton posted an entry entitled Scholarship Tips. In response, a couple of readers posted comments about publishing in online law review supplements:

-From Haskell Murray: "I'd like to use the online journals for some of my more time sensitive articles, but being a junior, pre-tenure professor it seems like I should focus most of my time on traditional articles."

-From Marcia Narnine: "How are online business and law reviews perceived?"

My general sense is that tenure and promotion committees don't use the shorter pieces in online law review supplements (usually in the range of 1,500-6,000 words) to meet numerical requirements for tenure and promotion decisions. That said, I think that they are given some weight in evaluating the scholarly productivity of faculty members. 

I am a big advocate of both pre- and post-tenure faculty publishing in online law review supplements but because of any direct effect that such publications have on T&P decisions. Why? Here are the PowerPoints from a presentation that I gave to the faculty at my law school: 

Download Online Law Review Supplements

Summarizing these slides, here ares some of the main advantages I see of publishing in online law review supplements:

-Getting the first word on major legal developments;

-Attracting a wider and more varied audience than a traditional law review audience;

-Being able to lay the groundwork/test ideas for a traditional law review articles;

-A much shorter timeline from acceptance to publication (usually 1-2 months);

-Looser footnoting/Bluebook requirements;

-Often working with terrific editors at top notch law schools;

-A decent chance of being cited or involved in appellate litigation for hot button issues;

-A decent chance of being invited to conferences/symposia

-Creating something much more usable in class than a 20,000+ word traditional article.

-CM

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

As I have been writing a lot about the Best Evidence Rule recently, a question has arisen. Federal Rule of Evidence 1002 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.

That said, Federal Rule of Evidence 1004(d) 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.

So, when is a writing, recording or photograph not closely related to a controlling issue?

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My New Essay: Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay

Following up on several of my recent posts, I just finished the draft of a short essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay. That essay is available for download on SSRN. Here is the abstract:

Vince brings a battery action against Dan based upon an encounter between the two men. Dan claims that he was acting in self-defense and wants to testify that Ed sent him the following text message minutes before the encounter: “Vince is coming to see you to collect on that drug debt that you owe him.” Dan could argue that he is offering the statement not to prove the truth of the matter asserted but to prove its “effect on the listener,” making it nonhearsay Specifically, Dan could claim that he is offering the statement to prove that, regardless of whether Ed was being honest and/or accurate when he made the statement, Dan had every reason to believe the statement, placing him in reasonable apprehension of Vince. 

Assume, however, that Dan deletes Ed’s message after the altercation because it mentions a drug debt, which could lead to Dan being investigated for drug-related crimes. If Dan wants to testify concerning the text message to prove reasonable apprehension, there is no hearsay problem, but is there a Best Evidence problem? Most courts answer this question in the negative by conflating the rule against hearsay and the Best Evidence Rule and concluding that the Best Evidence Rule is not applicable if secondary evidence concerning a writing is not offered to prove the truth of the matter asserted. This essay contends that this conflation reflects a fundamental misunderstanding of the Best Evidence Rule and that courts must disentangle that Rule from the rule against hearsay.

-CM

The Rule Against Hearsay, the Best Evidence Rule, and Authentication

After searching high and low, I think that I have found a court opinion that at least makes some attempt to explicitly disentangle the rule against hearsay and the Best Evidence Rule. That opinion is Kroh v. Kroh, 567 S.E.2d 760 (N.C.App. 2002), the rare opinion that deals with the intersection between the rule against hearsay, the Best Evidence Rule, and bestiality.

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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.

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Truthiness: Eastern District of California Finds Best Evidence Rule Precludes Admission of Declaration Describing E-mail

Following up on last week's posts, Sutton v. DeRosia, 2012 WL 4863788 (E.D.Cal. 2012), provides a nice illustration of why the Best Evidence Rule should apply to writings that are no offered to prove the truth of the matter asserted.

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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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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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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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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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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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The Best of Everything: Court Strikes Portions of Affidavit Referencing Non-Produced E-Mails in Fraud Case

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.

A few days ago, I posted an entry about the Best Evidence Rule and the exchange of text messages between a criminal defendant and an alleged victim. Today, let's look at Grant v. Van Natta, 2013 WL 466212 (S.D. Ind. 2013), a case involving the Best Evidence Rule and the exchange of text messages between a civil plaintiff and a civil defendant.

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Better Evidence or Best Evidence?: Does the Best Evidence Rule Apply if the Witness Saw a Live Video Feed?

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.

It is clear, however, that the Best Evidence Rule does not apply if a witness has independent personal knowledge  of an event that was later or simultaneously reduced to a writing, recording or photograph. Let's say, for instance, that William is in a bank when he observes Dan robbing the bank. The bank robbery is also captured on the bank's surveillance camera. William could testify about the robbery because he has independent personal knowledge of the bank robbery, i.e., his knowledge is not dependent on the surveillance footage. In other words, even if there were no surveillance camera, William would still have personal knowledge of the robbery. Conversely, if Police Officer Peters were not in the bank, later looked at the surveillance footage, and then destroyed the footage, the Best Evidence Rule would preclude him from testifying about the robbery at trial.

The recent opinion of the Eleventh Circuit in United States v. McKenzie, 2013 WL 323237 (11th Cir. 2013), however, presents an interesting twist on this scenario: What if an officer is watching a live video feed of a of drug sale and the prosecution then wants the officer to identify the defendant as a participant in that drug sale at trial without producing the video recording of that sale? Does such testimony violate the Best Evidence Rule?

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Gettin' (Un)lucky in Kentucky, Take 2: Why I Disagree With a Strict Prosecution-as-Proponent Construction of Rule 1004

Yesterday's post dealt with what turns out to be an interesting question not even addressed by the Supreme Court of Kentucky: what to do with under the Best Evidence Rule when the alleged victim of a crime destroys a writing, recording, or photograph in bad faith. 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.

In turn, Federal Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

This begs the question of who is the proponent in a criminal case: the prosecution, the alleged victim, or both?

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Gettin' (Un)lucky in Kentucky: Supreme Court of Kentucky Apparently Badly Botches Best Evidence Ruling Regarding Text Messages

Similar to its federal counterpart, Kentucky 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, in other rules adopted by the Kentucky Supreme Court, or by statute.

Now, take a look at the recent opinion of the Supreme Court of Kentucky in Simmons v. Commonwealth, 2013 WL 674721 (Ky. 2013), and tell me if you think that it makes any sense.

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Non-Event: Court of Appeals of Texas Finds "No Records" Certificate Admissible Under Rule 803(10)

Similar to its federal counterpart, Texas Rule of Evidence 803(10) provides the following exception to the rule against hearsay:

(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.

As the recent opinion of the Court of Appeals of Texas, Houston, in Texas Municipal Power Agency v. Johnston, 2013 WL 744395 (Tex.App.-Houston [1 Dist. 2013]), makes clear, this exception frequently applies to "no records" certificates.

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Freeze Frame: Court of Appeals of Michigan Applies Rule 803(13) to Postcard

Continuing my discussion of lesser known hearsay exceptions, today let's look at Federal Rule of Evidence 803(13), which provides an exception to the rule against hearsay for

A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

I have only seen this Rule and its state counterparts applied in a handful of cases, including Matter of Egbert's Estate, 306 N.W.2d 525 (Mich.App. 1981).

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