THE BEST EVIDENCEAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 75, No. 1 (JANUARY 1989), pp. 72-73Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760308 .

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Litigation

THE BEST EVIDENCE BY JAMES W. McELHANEY

Flash Magruder (as court watch ers called him) was trying to get some demonstrative evidence admitted, and was having difficulty.

The exhibit was a drawing pre pared by a medical illustrator. It showed the plaintiff?Mike Sand ers?with a portion of his cheek and nose cut away so the jury could see his underlying injury. Sanders had been putting his money in the fare box of a bus just as the bus pulled away from the curb and ran into the rear of a cement truck that had sud denly stopped in front of it. In the crash Sanders's nose was broken and shoved up into his head, and the medical illustration showed how the ragged edges of the broken bones had cut through some important nerves.

It was an impressive bit of med ical art, designed to make it easy to understand what had happened to Sanders. Almost like a photograph, it showed him so true to life that even old friends who had not seen him for years would recognize him. And like a medical illustration, the cutaway showed shattered bones and severed nerves colored so they would be easy to identify. It looked nothing like the subtle shadows on the typical x-ray that only radiologists seem to under stand.

Magruder knew that the typical foundation for a photograph would never do for this illustration. A pho tograph?say, of an accident scene? has to be a fair and accurate repre sentation of the way the scene looked at the time of the accident.

But no matter how recognizable Sanders was, the illustration was not fair and accurate in the usual sense. Sanders had never gone around with part of his face and nose cut away so you could see his broken bones and torn nerves. And besides, there was no reason for thinking he had color coded bones, muscles, tendons, arter

James W. McElhaney, the Jo seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law, is a senior editor and col umnist for Litigation, the Journal of the ABA Section of Litigation.

I

ies, veins and nerves.

So Magruder asked around and decided that the proper foundation for the illustration was that it would help an expert witness?Sanders's doctor?explain his testimony to the jury. Magruder also thought that while the illustration did not show Sanders's actual appearance, it was a

fair and accurate representation of his medical condition right after the col lision.

Maybe that is how Magruder got in trouble. He decided that because the medical illustration was so much

more effective than the x-rays and doctor's notes in showing what hap pened to Sanders, he would not use those other exhibits.

That played right into the defen dant's hands. First Magruder used the doctor to lay the foundation. The doctor said the illustration accu rately showed Sanders's medical con dition, and would help him explain his testimony to the jury. Then the defense lawyer examined the doctor on voir dire. The doctor explained that the illustration was based in part on the x-rays that were taken when Sanders went into the hospital and in part on notes that the doctor took when he first examined Sanders. That is when the defense objected to the illustration as not being the best evi dence.

Magruder exploded. "That's ri diculous, your honor. The best evi dence rule applies to documents. This illustration is based on x-rays, and x rays aren't documents."

"Yes they are," the defense law yer said. "It's right here. Rule 1002 of the Federal Rules says the original is required 'ftlo prove the contents of a

writing, recording or photograph.' And Rule 1001 says an x-ray is a pho tograph."

Then Magruder had (for him) an unusual spark of insight. "But your honor, we are not offering this to prove the contents of the x-ray, even if it is a document. We are offering this only as an aid to the doctor's tes timony."

The court was about to rule in Magruder's favor when the defense lawyer said, "Well, if this illustration is not supposed to show the plain tiff's condition, then it isn't relevant to the case. And besides, since the doctor's testimony is also based on those x-rays that aren't in evidence, it violates the best evidence rule, too."

So who is right, Magruder or his opponent? The starting place for an

swering the question is the best evi dence rule itself: To prove the contents of a document, you must in troduce the original or account for its whereabouts. It is a rule that has its roots in a time before word proces sors, copier machines, typewriters or even carbon paper. Handmade copies might have deliberate changes or at least contain mistakes. And oral tes timony about what some document said is even more suspect.

But even though modern copy ing machines are more accurate than scriveners hunched over their work, we have kept the best evidence rule? partly out of habit and partly be cause it continues to serve some pur

pose. There are some important things

to understand about the rule. First, from the common law. The best evi dence rule only applies to situations in which you are actually proving the contents of a document. And to prove the contents of a document, the in formation you are introducing in evi dence has to come from the document. Just because the infor mation happens to be in a document does not mean you are proving its contents.

Wait a minute, you say. Does that make any sense? It actually does, and a simple example will make it clear. Suppose you want to prove what the weather was like in Chicago on April 23, 1988. You call a witness who was

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n ABA JOURNAL / JANUARY 1989

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Litigation

Standing outside the Daley Center at 12:00 noon on April 23. You ask him

whether it was raining. Now suppose your opponent

jumps up and objects. "Not the best evidence, your honor. There is an of ficial U.S. weather report for Chi cago. If they want to prove what the weather was, let them introduce the report."

The objection is wrong. The wit ness knows what the weather was. He saw it himself. Just because the in formation also happens to be in a document does not mean it comes from the document.

Now recall that the medical il lustrator did the cutaway of Mike Sanders based in part on x-rays and the doctor's notes. Does this mean that the illustration is not admissible unless the x-rays and notes are intro

duced first? Not necessarily, although it ob

viously would have solved a lot of problems if the notes and x-rays had been introduced into evidence. That is because the best evidence rule does not prohibit secondary evidence. It only prohibits secondary evidence when it is being used to prove the contents of a document. When the original is already in evidence, the purpose of the rule is satisfied.

But the x-rays and notes were not introduced into evidence. So doesn't the exhibit violate the best evidence rule?

Like I said, not necessarily. It does not matter where the art

ist got her information; it only mat ters what the exhibit is being used for. Under the circumstances, it was a mistake for Magruder to have the doctor testify that the illustration was a fair and accurate representation of Mike Sanders's medical condition. That was proving the contents of the x-ray.

But then Magruder backed off from that foundation and said the il lustration was offered to aid the wit ness in explaining his testimony. Didn't that solve the best evidence problem?

Not completely. Why not? Let us go back to the weather in

Chicago on April 23. The witness knows what the weather was like, so the best evidence rule does not re quire introducing the official weather report. Now let us assume that a com

mercial artist prepares a chart that shows the weather in Chicago on that day. The chart, we assume, will help our witness explain what he saw.

Should the chart be admitted? Certainly. Will it matter that the artist got

his information about the weather from the official U. S. weather re

port? Certainly not. The same idea applies to Flash

Magruder and Mike Sanders's doctor. But unlike the witness who saw the weather, the doctor got some of his information about Sanders from an other source?the x-rays. So even if the exhibit is only used to aid the doctor in explaining his testimony, the testimony itself violates the best evidence rule. SeeSirico v. Cotto, 324 N.Y.S.2d 483 (1971).

The lesson is: be prepared to of fer the original documents in evi dence.

Finally, there are a few things worth knowing about the best evi dence rule as it appears in the Fed eral Rules.

First, "duplicates" are just as ad missible as the original unless there is a genuine question as to the au

thenticity of the original or under the circumstances it would be unfair to admit the duplicate. Rule 1003. "Du plicates" include carbon copies, pho tocopies, or equivalent techniques that accurately reproduce the origi nal. Rule 1001(4). So for practical purposes, a photocopy is an original, which makes a lot of sense.

Second, the original is not re quired when the document is not closely related to a controlling issue. Rule 1004(4). In other words, if the document is collateral, the best evi dence rule does not even apply.

Third, like the common law, the federal best evidence rule does not require the original if you are able to account for its whereabouts. So if you can show that the original was lost or

destroyed, cannot be obtained by ju dicial process, or is in the hands of your opponent (and you requested he produce it), then the best evidence rule has been satisfied.

It means that so long as your client is not guilty of destroying the original because of the impending lit igation, you can deal with the best evidence rule.

If you think of it in time.

COMING IN FEBRUARY

THE4TH

ANNUAL

FINANCIAL

PLANNING

GUIDE

The Journal has assembled a team of four financial and invest ment writers to help lawyers at all stages of their careers to plan their finances.

The greatest temptation for a lawyer just starting out is to spend, spend, spend. Financial writer

Nancy Dunnan sets out an eight step plan to get a young lawyer to fight that temptation and start on the road to long-term financial health.

If you've been a partner for a

year or two, you're making a lot of

money, but you never seem to have

any in the bank. Investment writer Julie Bennett tells you how to start investing for the future.

If you're around 45, chances are you're looking at colleges, but this time, you're going to foot the bill. And you're also starting to think about retirement. Alan Ro

senthal, a former editor of Crain's Illinois Business, writes about var ious ways to deal with both of these financial problems.

And if you're a senior part- ..

ner, eyeing leisurely hours at the beach or on the golf course, you may be making one of the two most common financial mistakes: You're too conservative, or not conserva tive enough. Warren Boroson, the author of last year's financial plan ning guide, advises senior partners on how to avoid mistakes.

JOURNAL ABA JOURNAL / JANUARY 1989 73

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