Return of Collateral: Jackson v. Crews & Federal Rule of Evidence 1004(d)

On Friday and Monday, I wrote about Federal Rule of Evidence 1004(d), which states that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if…the writing, recording, or photograph is not closely related to a controlling issue.

In those posts, I explained why I don’t think that either of the cases cited in the Advisory Committee’s Note to Rule 1004 provides a good example of the application of Rule 1004(d). I do think, however, that Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), provides a good example of when a writing is not closely related to a controlling issue.

Here’s the relevant portion of my eLangdell Chapter on the Best Evidence Rule:

In Jackson v. Crews, 873 F.2d1105 (8th Cir. 1989), a movie theater patron who was arrested for publicintoxication and resisting arrest brought a Section 1983 action against the municipality and hisarresting officer for excessive force. On appeal, after the district courtawarded damages to the plaintiff, the arresting officer alleged that thedistrict court erred by allowing Jackson to question a witness about thecontents of a flyer describing the arrest and “asking any witnesses to contactthe person named on the flyer.” Id. at 1109-10. The Eighth Circuit determined that the BestEvidence Rule did not preclude the testimony despite the nonproduction of theflyer because, inter alia, thecontents of the flyer were “collateral to the principal issue in the trial.” Id. at 1110. 

-CM