The thing is, as Chris will tell you, Rule 1002 isn’t as straightforward as it might appear. That’s because there’s a pretty broad exception to the Best Evidence Rule–Rule 1007. Now, bear with
me. Rule 1007 states that “the proponent may prove the content of a written statement of the party against whom the evidence is offered without producing or accounting for the original.”
Essentially, one party can discuss a written statement in court without entering that statement in evidence if it was created or written by the opposing party. So, what would that mean in a real case?
The Rule 1007 Head-scratcher
Let’s say I find a lawn mower I want to buy on Milton’s Facebook Marketplace page. We’ve all been there. And what do you know, Billy down the street has exactly what I've been looking for. Even though he’s my neighbor, I decide, in the interest of caution, I’m going to have my lawyer draw up a contract between Billy and I to make sure we both hold up our end of the bargain. I get the lawn mower; he gets paid our agreed upon price.
Except, mid-way through finally mowing my overgrown lawn, I find out Billy’s claiming I shorted him $10. Rather than simply asking me for the money (I’m
sure I just miscounted), he sues me. When we get to court, and Billy takes the stand, he starts rambling on and on about that contract, mentioning clauses I never put in there, without producing it for the court. My attorneys might argue that this testimony is inadmissible due to the Best Evidence Rule, but Bill’s attorneys would counter my objection by referring to Rule 1007.
If something about that situation sounds wrong to you–good. It does to Chris and I, too. Why does the Best Evidence Rule exist if not to protect the factfinder and myself against this exact kind of lawn-mower catastrophe?
What We Can Do About It
Now, typically, when the rules don’t make a ton of sense right off the bat, we look to the notes below them. Except, in this case, the notes under Rule 1007 don’t make a ton of sense either. 3 cases are cited, and after digging through each, none of them seem to justify this exception to the rule.
Despite Chris and I’s frustrations–and now yours too–he suggests we still not panic. He explains that “fortunately, the Massachusetts Guide to Evidence
IS NOT
what we call “controlling authority.” Judges don't have to obey it. Instead, it's called “persuasive authority,” which just means that judges should take it into consideration if it applies under the circumstances.”
Controlling or not, though, the Massachusetts Guide to Evidence should not contain what appears to be such a blatant contradiction. If it were up to me, I would recommend the complete abolishment of Rule 1007. This is not to say that Rule 1002 should not maintain any exceptions. In fact, in its notes, it already does. For example, when a document has been lost or destroyed, evidence of its content is still admissible without producing that document. If the contents are so simple it would be a waste of time to enter it, a document need not be admitted, and the list goes on. Rule 1007, however, goes so far as to render Rule 1002 nearly meaningless.
Exempting an opposing party from this requirement is against the spirit of the Best Evidence Rule. I believe–and for once, Chris and I agree–Rule 1007 needs a good hard look from the authors of the Massachusetts Guide to Evidence.
