Meyers v. United States
171 F.2d 800 (D.C. Cir.), cert. denied, 336 U.S. 912 (1949)
 

[In Meyers, an appeal from a perjury conviction, the Court of Appeals for the District of Columbia upheld the trial court's admission of a witness's testimony of his recollection of proceedings for which a written transcript was available, against a challenge that it was not the "best evidence." Judge Miller, writing for the court, noted that:]

    As applied generally in federal courts, the [best evidence] rule is limited to cases where the contents of a writing are to be proved. Here there was no attempt to prove the contents of a writing; the issue was what [the defendant] had said, not what the transcript contained. The transcript made from shorthand notes of his testimony was, to be sure, evidence of what he had said, but it was not the only admissible evidence concerning it. [The witness's] testimony was equally competent, and was admissible whether given before or after the transcript was received in evidence. Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand.

[Judge Prettyman delivered a lengthy dissent:]

    The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error....

    When the trial began, the principal witness called by the Government ... was asked by the United States Attorney, "Now, will you tell the Court and the jury in substance what the testimony was that the defendant Lamarre gave before the Committee concerning the Cadillac automobile?" ...

    The court at once called counsel to the bench and said to the prosecutor: "Of course, technically, you have the right to proceed the way you are doing.... I do not think that is hearsay under the hearsay rule, but it seems to me ... that, after all, when you have a prosecution based on perjury, and you have a transcript of particular testimony on which the indictment is based, that you ought to lay a foundation for it or ought to put the transcript in evidence, instead of proving what the testimony was by someone who happens to be present, who has to depend on his memory as to what was said."

    Counsel for the defense, objecting, insisted that the procedure was "preposterously unfair." The trial judge said that it seemed to him that the transcript ought to be made available to defense counsel. That was then done, but the prosecutor insisted upon proceeding as he had planned with the witness.

    Mr. Rogers then testified: "I will try to give the substance of the testimony.... I am sure your Honor appreciates that I do not remember exactly the substance of the testimony. The substance of testimony was this...."

The notable characteristics of this testimony of Rogers are important. In each instance, the "substance" was a short summation, about half a printed page in length. The witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection, and his recollection on each of the three matters bears a striking resemblance to the succinct summations of the indictment. It is obvious that what the witness gave as "substance" was an essence of his own distillation and not an attempt to reproduce the whole of Lamarre's testimony....

    The difference between the presentation of elemental facts and the piecing of them together so as to reach a conclusion is basic. One is evidence and the other argument. The principle runs through much of the law of evidence.

    I doubt that anyone would say that the prosecutor could first have put into evidence the transcript of Lamarre's testimony and thereafter have produced Rogers to give to the jury from the witness box his own summation of it. He would have been met with a ruling that "the transcript speaks for itself." Indeed, exactly that developed. The prosecutor first produced the oral summation, and it was admitted. Then he produced the transcript. Then, when defense counsel attempted to cross-examine as to "the substance," he was blocked because of the presence of the transcript. Can a prosecutor do by so simple and obvious a maneuver that which the law otherwise forbids as unfair? Can he thus transform into sworn evidence from the box that which is otherwise only argument from the rail? I do not think so. In the presence of the unimpeached transcript, even though it was temporarily on counsel table and not yet in the clerk's hands, summation and interpretation was argument and not evidence.

    Nor was the prejudice cured by the availability of the transcript to defense counsel for cross-examination. If that were so in this case, the same doctrine would admit in evidence any opinion, or description, or summation of elemental facts otherwise provable in precise accuracy. The impression given by a succinct summation by a live witness on the stand cannot be corrected or offset by the later reading of a long, cold record. It is my view that for this exceedingly practical reason the reception of Rogers' summation in evidence was not permissible....

    The rationale of the so-called "best evidence rule" requires that a party having available evidence which is relatively certain may not submit evidence which is far less certain. The law is concerned with the true fact, and with that alone; its procedures are directed to that objective, and to that alone. It should permit no procedure the sole use of which is to obscure and confuse that which is otherwise plain and certain....

    To be sure, the writing may be attacked for forgery, alteration or some such circumstance. But absent such impeachment, the writing is immutable evidence from the date of the event, whereas human recollection is subject to many infirmities and human recitation is subject to the vices of prejudice and interest. Presented with that choice, the law accepts the certain and rejects the uncertain. The repeated statement in cases and elsewhere that the best evidence rule applies only to documents is a description of practice and not a pronouncement of principle. The principle is that as between human recollections the law makes no conclusive choice; it makes a conclusive choice only as between evidence which is certain and that which is uncertain....
In my view, the court iterates an error when it says that the best evidence rule is limited to cases where the contents of a writing are to be proved. The purpose of offering in evidence a "written contract" is not to prove the contents of the writing. The writing is not the contract; it is merely evidence of the contract. The contract itself is the agreement between the parties. Statutes such as the statute of frauds do not provide that a contract be in writing; they provide that the contract be evidenced by a writing, or that a written memorandum of it be made. The writing is offered as evidence of an agreement, not for the purpose of proving its own contents. A deed to real estate is different, being actually the instrument of conveyance, although there is authority that it too is merely evidence of the agreement between the parties.

    The doctrine that stenographic notes are not the best evidence of testimony was established when stenography was not an accurate science....

    But we have before us no such situation. Stenographic reporting has become highly developed, and official stenographic reports are relied upon in many of the most important affairs of life. Even as early as 1909, a court referred to "Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers" as the reason for legislation making admissible as evidence a court stenographer's report. In the present instance, at least, no one has disputed the correctness of the transcript.

    From the theoretical point of view, the case poses this question: Given both (1) an accurate stenographic transcription of a witness' testimony during a two-day hearing and (2) the recollection of one of the complainants as to the substance of that testimony, is the latter admissible as evidence in a trial of the witness for perjury? I think not. To say that it is, is to apply a meaningless formula and ignore crystal-clear actualities. The transcript is, as a matter of simple, indisputable fact, the best evidence. The principle and not the rote of the law ought to be applied....

 


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