EvidenceProf Blog

Blogging Hiatus For the Week

I am taking this week off for exam grading and will be back with new posts starting on May 6th.

-CM

Adverse Reaction: Should a Court Give an Adverse Inference Instruction if a Party Barely Satisfies Rule 1004(a)?

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.

That said, 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...all the originals are lost or destroyed, and not by the proponent acting in bad faith....

As I have been writing a good deal about the Best Evidence Rule recently, a question has arisen: What exactly constitutes bad faith for Rule 1004(a) purposes? Obviously, if a party destroys an original writing, recording, or photograph with the specific intent of preventing the opposing party from being able to introduce it at trial, that party has acted in bad faith. But what if a party intentionally destroys an original for purposes other than depriving the opposing party from being able to introduce it at trial? In an example I gave a couple of days ago, a wife deleted a text message to protect her husband's reputation (because it mentioned smoking weed) rather than to prevent the defendant from introducing it in a wrongful death action. Is that "bad faith" destruction under Rule 1004(a)? And what about if a party destroys an original due to gross negligence? As I have noted, at least court has implied that such negligent destruction might prevent a party from relying on Rule 1004(a). 

It seems that the definition of "bad faith" under Rule 1004(a) is very much unsettled. For today's purposes, let's assume that a court applies a very narrow definition of "bad faith." The opinion of the United States District Court for the Eastern District of New York in Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009), raises an interesting question: If a party's destruction of an original isn't quite "bad faith," can't/should the court still give an adverse inference instruction?

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Loss of Control: Why Should Evidence Admissible Under Rule 1004(d) be Admissible Under Rule 403?

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.

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

Meanwhile, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, here's my question: Shouldn't a court (almost) always deem secondary evidence covered by Rule 1004(d) inadmissible under Rule 403?

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More Adventures in the Best Evidence Trade: The Best Evidence Rule & Disputed Facts

In talking with my colleague, Jim Flanagan about my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, we realized that all of the examples that I had given involved mostly undisputed facts and mere disputes as to credibility. Dan and Vince get into a fight, and the only question is whether Dan got a text message placing him in reasonable apprehension of Vince. A wife leaves her husband and returns with the couple's children to the United States, and the only question is whether she read a copy of an e-mail in which the husband professed his love for the wife's sister. A wife starts conducting surveillance on her husband, and the only question is whether she read notes from a veterinarian alleging that the husband had engaged in acts of bestiality against the family dog.

Upon discussing the matter, though, I think that I came up with a pretty good example of a case in which I think that the Best Evidence Rule should apply to evidence/testimony concerning a writing (1) not offered to prove the truth of the matter asserted, but (2) offered to prove disputed facts.

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Simply The Best: The Best Evidence Rule as a Non-Exception to the Rule Against Hearsay

In my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, I discuss how courts have improperly conflated the rule against hearsay by concluding that evidence/testimony offered to prove something other than the truth of the matter asserted in a document doesn't violate the rule against hearsay...and thus also doesn't violate the Best Evidence Rule. My point in the essay is that the rule against hearsay and the Best Evidence Rule are concerned with similar but distinct things. One way to prove this is to look at the inverse situation. If evidence concerning the contents of a document satisfies the Best Evidence Rule, does it automatically satisfy the rule against hearsay? The answer, of course, is "no."

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You Got It: Court Finds No Best Evidence Problem Because Defendant Had Original

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.

That said, Federal Rule of Evidence 1004(c) (formerly Federal Rule of Evidence 1004(3)) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing....

Rule 1004(c) doesn't come up terribly often, but it was used in Barraza v. Housing Authority of City of Seattle, 2006 WL 1663702 (W.D.Wash. 2006).

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Faith No More?: Michigan Court Dicta Implies Negligent Loss of Originals Creates Best Evidence Problem

Similar to its federal counterpart, Michigan 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 counterpart, Michigan 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."

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

Similar to its federal counterpart, Hawai'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

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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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