NAVIGATING IN THE BACKWASH OF THE BEST EVIDENCE RULE

October 17, 2012 § 1 Comment

We visited MRE 1002, the so-called “Best Evidence Rule,” in this post. It can be confusing and a pitfall for attorneys and judges alike. To put it concisely, the rule requires that you produce the original of a writing if you are trying to prove its contents.

So you’re cruising through cross-examination of the opposing party and the other side makes an objection based on the Best Evidence Rule, which the judge sustains. The problem for you is that you don’t have the original; all you have is the copy you had started questioning the witness about. What do you do now?

That’s where MRE 1003 and 1004 come in. They point possible ways past your dilemma.

MRE 1003 says that you can use a duplicate unless there is a “genuine question” as to its authenticity, or where it would be unfair to admit the duplicate in place of the original. In the case of Ellzey v. James, 970 So.2d 193, 195 (Miss.App. 2007), the court upheld a chancellor’s finding that the duplicate was not admissible where it was only a partial copy, and there was an issue of possible alteration. Some cases in which the trial court’s findings of authenticity supported use of a duplicate include: Trull v. State, 811 So.2d 243, 246 (Miss.App. 2000); Foster v. Noel, 715 So.2d 174, 182 (Miss. 1998); and Seals v. State, 869 So.2d 429, 433 (Miss.App. 2004). In DeLaBeckwith v. State, 707 So.2d 547, 602-3 (Miss. 1998), the court held that copies of 1964 trial transcripts were properly authenticated as judicial records, and affidavits of attorneys who were present at the 1964 proceedings to the effect that the transcripts were inaccurate were not adequate to impeach the authenticity of the judicial records.

MRE 1004 offers several other ways out of the trap. The original is not required, and the court may admit other evidence of its contents if …

  1. The original is lost or destroyed, and not due to a bad-faith act of the proponent; or
  2. The original is not obtainable by any available judicial process; or
  3. The original is in possession of the opponent who has not produced it after being put on notice that it will be at issue at trial; or
  4. It is not closely related to a controlling issue.

It’s up to you, once the judge has ruled, to satisfy him or her that one of the exceptions applies. That usually will require some evidence unless counsel opposite concedes the point.

Some other exceptions to the Best Evidence Rule recognized in Mississippi case law:

  • When a sound recording is enhanced to eliminate background noise, and the conversations on it are not changed in any way, the recording is admissible as an original. Cook v. State, 728 So.2d 117, 121 (Miss.App. 1998). 
  • Writings used to refresh a witness’s recollection need not be admissible in evidence, so the Best Evidence Rule does not apply. Hunt v. State, 687 So.2d 1154, 1162 (Miss. 1997).
  • Because the contents of a letter were not related to the issues before the court, the Best Evidence Rule did not apply. Farris v. State, 906 So.2d 113, 117-8 (Miss.App. 2004).
  • Where the document is offered merely to prove that it exists, and not to prove its contents, the Best Evidence Rule does not come into play. Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).
  • A true copy of a handwritten note was admitted over the original handwritten note in a case where an insurance agent was shown to have altered the original handwritten note, and the copy showed it before alteration. Dixie Insurance Co. v. Mooneyhan, 684 So.2d 574, 581-2 (Miss. 1996).  

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