Answer to Weekly Bar Question 04/14/08

(D) is the best response, because it correctly states that a witness may refer to collateral documents without having to produce the documents themselves.

The central issue in these facts is that Ward is testifying relying on a writing – namely, the newspaper story.  Thus, there’s a potential Best Evidence Rule problem.  Under the Best Evidence Rule, when the terms of a writing are being proven, or the witness is testifying relying on a writing, the writing must be produced, if available.  FRE 1002.  However, under these facts, the only relevance the writing ahs is that it reinforces Ward’s memory.  Ward’s memory is not closely related to a material issue in the case, and as such is considered “collateral.”  The Best Evidence Rule doesn’t cover collateral matters, and, as a result, his testimony will be admissible without producing the newspaper.  FRE 1004.  Since D states the correct rule and applies it to these facts, it is the best response. 

(A) is not the best response, because the Best Evidence Rule is not applicable to these facts.  The Best Evidence Rule, requiring that the document itself be produced if available, only applies if the terms of a writing are being proven, or the witness is testifying relying on a writing.  FRE 1002.  However, under these facts, the only relevance the writing has is that it reinforces Ward’s memory.  Ward’s memory is not closely related to a material issue in the case, and as such is considered “collateral.”  The Best Evidence Rule doesn’t cover collateral matters, and, as a result, Ward’s testimony will be admissible without producing the newspaper.  FRE 1004.  Since A doesn’t recognize this, it’s not the best response. 

(B) is not the best response, because there’s no hearsay problem under these facts.  Hearsay is an out-of-court statement offered to prove the truth of its assertion.  Here, the out-of-court statement is that of the newspaper.  However, it’s not being offered to prove that Ward’s daughter actually became engaged on that day; thus, it’s not being offered to prove the truth of its assertion, but rather only to prove something unrelated to the writing: that Ward talked with Terrell that day.  As a result, it’s not hearsay.Instead, what B ignores is the central issue under these facts, which involved the Best Evidence Rule.  The Best Evidence Rule, requiring that the document itself be produced if available, only applies if the terms of a writing are being proven, or the witness is testifying relying on a writing.  FRE 1002.  However, under these facts, the only relevance the writing has is that it reinforces Ward’s memory.  Ward’s memory is not closely related to a material issue in the case, and as such is considered “collateral.”  The Best Evidence Rule doesn’t cover collateral matters, and, as a result, Ward’s testimony will be admissible without producing the newspaper.  FRE 1004.  Since B ignores this issue all together, it’s not the best response. 

(C) is not the best response, because it states an incorrect rule of law.  Judicial notice is appropriate for both notorious facts (subject to common knowledge in the community) and manifest facts (capable of positive verification through readily accessible, undoubtedly accurate sources).  FRE 201(b).  The contents of local newspapers would not fit either one of these categories, since, apart from anything else, the papers could quite easily have misdated Ward’s daughter’s engagement announcement.  (Appropriate topics for judicial notice include federal and state laws, the normal human gestation period, information available from almanacs, the validity of ballistics tests, the validity of paternity blood tests, and the like- you get the idea.)Instead, what C fails to realize is the central issue under these facts: the applicability of the Best Evidence Rule.  In fact, since the article only addresses a collateral issue – Ward’s memory for the date his conversation with Terrell took place – the Best Evidence Rule does not apply, and Ward’s testimony will be admissible without producing the newspaper report.  Since C ignores this issue, and misstates the rule on judicial notice, it’s not the best response.