Best Evidence Rule Redux (Update)

So maybe I belong in the 18th century.  Mozart was around.  Then again I probably never would have heard of him unless I had the good fortune to have lived in Vienna.

Back in the 18th century, courts observed the best evidence rule as “elementary”.  But as you go forward in time from there, it gets more and more confused, until “scholars” from the 20th century like Wigmore mess it up completely.

The Federal Rules of Evidence have essentially abolished the best evidence rule.  Its sole recognized residual use under the federal rules is that an “original” document will be preferred to a copy unless there is some showing that the original no longer exists.  This isn’t even the idea in the first place:  although certainly the best evidence rule could be used to exclude a copy under many circumstances, it wouldn’t always function that way.  It might be possible in a given case to argue that a copy was the better evidence.  Think of the trial scene in “The Verdict“.

Anyway, this whole thing is terribly unfortunate and leaves the legal profession looking like a bunch of morons.

Some evidence is just much better than other evidence on the same point, and in such a circumstance you don’t bother with the worse evidence.  If you do, you’re just wasting everyone’s time with non-debatable issues and inviting stupidity, or fraud, or both.

Let’s say you have a case where a plaintiff is claiming he was defrauded by the defendant, who gouged him on his purchase of some bushels of wheat on a given day.  The Plaintiff says that on the date in question the fair market price for wheat was $100 per bushel and the defendant says the fair market price on that same day was $500 per bushel.

The day of trial comes, and the Plaintiff gets up there on the stand and says what he thinks the fair market price of wheat was and the defendant gets up and says what he thinks.

Meanwhile, bushels of wheat are publicly traded on a market exchange and the market price for the day in question is a matter of public record kept by the market makers, who have no interest in the litigation between the plaintiff and the defendant.  But the plaintiff and defendant want to have their fight about it and their lawyers are abiding by their wishes and say:  well, we’ll just put in the testimony and let the jury decide.

Now, this is an exceedingly stupid situation that a court cannot tolerate.  The market price of the bushels of wheat are far better ascertained through evidence coming from the markets where bushels of wheat are traded.  The “testimony” of the interested parties about what they believe is not “irrelevant”, because it pertains to the point in issue, but it is so far inferior in quality to market data that there’s no point listening to it.  It doesn’t matter.  It should be excluded.

But with the death of the best evidence rule most courts have decided that this obviously stupid situation is a complicated conundrum.  The jury decides the “facts”, so we submit just the testimony to the jury – because “relevant” evidence is “admissible” – and whatever they decide goes.  Then we tell the jury that they are not to consider outside evidence.  Then we give them a “special verdict sheet” and ask them to determine the market price for the wheat on the day in question, and they only have the testimony to go by and so they side with the defendant and decide that it was $500 per bushel.

And the market price on the day in question was actually $150, according to the records of the markets themselves.

You see the problem?  Now the jury has found a “fact” that just isn’t so, and everyone knows it.  But it’s a “verdict”, meaning it’s the “truth” and it will be reduced to a “judgment” that has the force of “law”

Now this is a simple mockery of the courts.  It may be self inflicted and to a large extent certainly is, but mockery is as mockery does.  The general public reads about the verdict in the newspaper and scratches their heads, wondering if the judges and lawyers should be locked away before they hurt themselves.

We need a best evidence rule revival.

Now, the “evidence” that Sephora Davis was driving the car for the robbery in question mainly comes from co-defendants who took a deal before they fingered her as the driver.  If that is the best evidence, and then maybe one of them recants the claim, as Adrian Paige did, well I have to agree that the recantation by itself is not significantly better than the original claim (although it is against his interest, so that’s a marginal improvement) and at that point you have a conflict in evidence and you let the jury decide it.  The evidence is all garbage, pretty much.  None of it is definitively any better than any other.

But when the first part of Adrian Paige’s recantation is “Sephora was sick all day” and “out of it” and you are able to produce a hospital record from the very day in question showing that to be quite likely and even certain, you now have such a disparity in the quality of proof that one is definitely “better” than the other, and you no longer have an issue for a jury; the best evidence rule disposes of the issue.  Resolves it.  Nobody has to watch anyone’s demeanor.  It’s a waste of time.  And by indulging such nonsense we’re confusing issues rather than clarifying them, undermining the truth finding function of the adjudicative process.  Worse than that, we’re tempting any party who, say, has a legal monopoly on the use of force to use that monopoly to his advantage and threaten and intimidate witnesses to “testify” the way he wants them to.  Just as commenter GK has suggested.  Just as District Attorney Tom Moran did.

And I won’t even get into the Ashley Baker and Todd Gaddy situation.  From what I have outlined above it should be obvious how that one goes.

We’re in a lot of trouble regarding our ability to reason and our “powers of discernment” at this point.  We never did have a good handle on the best evidence rule and it bites us in the butt all the time.  How does an “elementary” rule of reason from the 18th century become unfathomable in the 21st?  How much regression of the mind are we willing to endure in court proceedings?

How many people rot in prisons because even though perhaps we are not morons, we behave as if we are?

Update:  This idiocy on the part of the courts concerning “elementary” distinctions about the quality of evidence has many implications, including the “fraudclosure” crisis.  See here for some pithy details.  And h/t to Charley Seavey who emailed me with a link to that site.

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Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

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