§ 30.02 Rationale

• Jurisdiction: United States

§ 30.02 Rationale

The nature of writings gives rise to their special treatment. The manual copying of a writing is especially susceptible to the introduction of inaccuracies, and even a minor mistake may have significant legal consequences—for example, in wills, deeds, and contracts. Perhaps worst is the testimony of a witness who had read a document sometime in the past and attempts to recount at trial what she had read.⁵ Think of Bob Cratchit in Dickens's A Christmas Carol or some medieval monk laboriously copying documents by hand. At the time the rule developed, this was the type of secondary evidence that was of concern. The prevention of mistransmissions underlies the rule.⁶Although prevention of fraud has been identified as an additional purpose of the original writing rule,⁷ this view has been challenged.⁸

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Notes:

^[5] See Rodriguez v. Senor Frog's de La Isla, Inc., 642 F.3d 28, 34 (1st Cir. 2011) ("Think of a will contest where the will is not in evidence and a witness tries to discuss the document's words from memory—that is the sort of situation that the rule was designed to address.").

^[6] See Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir. 1986) ("The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. . . . [T]he importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the...