The Rule Against Hearsay, the Best Evidence Rule, and the Truth of the Matter Asserted

Dan is watching television at his house when he allegedly receives a text message from his friend Fred that says, “I saw Vince walking toward your house a few minutes ago with an angry look in his eyes.” Vince eventually arrives at Dan’s house and knocks on the front door. After Dan opens the front door, there is a physical altercation between the two men. Vince eventually sues Dan for battery. Dan claims that he was acting in self-defense. To prove that he was acting in self-defense, Dan seeks to testify regarding the text message that Fred sent to him to demonstrate that he was in reasonable apprehension of Vince. Federal Rule of Evidence 801(c) defines hearsay as 

a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Meanwhile, Federal Rule of Evidence 802, the rule against hearsay, states that

Hearsay is not admissible unless any of the following provides otherwise:  

•a federal statute;

•these rules; or

•other rules prescribed by the Supreme Court.

Moreover, Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

So, does Dan’s testimony implicate the rule against hearsay? Does it implicate the Best Evidence Rule? Many would answer both questions in the negative. With regard to the Best Evidence Rule, I disagree.

Let’s start with the rule against hearsay. Dan can legitimately claim that his testimony regarding the text message does not violate the rule against hearsay because he is not seeking to prove the truth of the matter asserted in the text message; instead, Dan is trying to prove the effect of the text message on his state of mind. In other words, regardless of whether Fred was being honest and/or accurate when he texted Dan about Vince approaching Dan’s house with an angry look, Dan had every reason to believe what Fred texted him and thus be in reasonable apprehension of Vince. Put another way, even if there was no truth to the matter asserted, the text message would still be relevant to prove reasonable apprehension. As I explain to my students, the rule against hearsay does not prohibit the admission of statements when the only question is whether the statement was made.   

Now, let’s look at the Best Evidence Rule. The Best Evidence Rule requires the proponent of evidence concerning the content of an original writing, recording, or photograph to produce the original (Rule 1002), produce a duplicate (Rule 1003), or account for nonproduction of the original (Rule 1004). I would argue that proving the content of a statement and proving the truth of the matter asserted in a statement are two different things. What I mean is that (1) the matter asserted in a statement is the equivalent of the content of the statement while (2) the truth of the matter asserted in a statement is the same thing as the truth of the content asserted in the statement.

The content of the text message in the example above is Fred’s statement: “I saw Vince walking toward your house a few minutes ago with an angry look in his eyes.” The truth of the matter asserted (or the truth of the content asserted) is that Vince actually was walking toward Dan’s house a few minutes ago with an angry look in his eyes. 

In my mind, the Best Evidence Rule is concerned with content while the rule against hearsay is concerned with the truth of that content. In the above example, if Fred’s text message was about dinner plans or the weather, it would not be relevant to establish that Dan was in reasonable apprehension of Vince. Therefore, Dan’s testimony that Fred texted him about Vince approaching his house with an angry look is testimony about the content of the text message because a text message with different content (e.g.,  a text message discussing the weather) would not be relevant to prove reasonable apprehension. And it would not be enough for Dan to claim that he was not attempting to prove the truth of the matter/truth of the content asserted. Unlike the rule against hearsay, the Best Evidence Rule is concerned with statements when the only question is whether the statement was made because it is concerned with content and not the truth of that content.

-CM