When Does a Document Speak for Itself?

By Judge James L. Kimbler
Medina County Common Pleas Court

A phrase that attorneys, and judges for that matter, sometimes use during trial is that a document “speaks for itself.” It is usually said when a witness is trying to explain the wording of a document or what a document means. When such an explanation is attempted, the opposing party will often object and say “Your Honor, the document speaks for itself.” After making that objection, the attorney will give the court and opposing counsel a satisfied smile as if to say, “Well, that settles that issue.”

But does it? When an attorney objects on the grounds that a document speaks for itself the objecting attorney is not making any objection recognized by the Ohio Rules of Evidence. If you look at Evidence Rules contained in Article X, titled “Contents of Writings, Recordings, and Photographs” you won’t see any rule listed that says that a document speaks for itself. Evidence Rule 1002 does require that to prove the contents of a document the original is required, but that is not the same thing as saying that the contents cannot be attacked or explained.

What the objecting attorney is really saying is one of two things:
(1)That an explanation of the document is not permitted or;
(2)That the document itself is completely self-explanatory.

If the basis of the objection is that an explanation of the document is not legally permitted, then what the attorney is saying is that such an explanation is irrelevant. In such a case, the proper objection is one based on Evidence Rule 402. If the basis of the objection is that further testimony about the document would be a waste of time, then the proper objection is one based on Evidence Rule 403.

An example of the first situation would be a contract case where there is a written contract and the terms are unambiguous. In such a situation, an attorney making the claim that a document speaks for itself is correct in the sense that evidence contradicting or explaining the contract, if made prior to or contemporaneous with the contract’s execution is not legally permitted under the parol evidence rule.

An example of the second situation might be where an attorney wants a witness to read a document to the jury that is going to come in as a exhibit. In such a situation such a reading might very well be permissible, but it could also be time consuming.

Another situation in which it might be claimed that a document “speaks for itself” is a situation where the contents of a document constitute admissible hearsay. In such a situation the trier of fact may accept the contents as true, but is certainly not required to do so, and further explanation or questioning might show why the trier shouldn’t accept the contents as true.

Ohio Rule of Evidence 806 allows impeachment of a hearsay declarant by any means that could be used if the declarant was testifying in person. So, for example, if it could be shown that the maker of the document was incompetent when the writing was made, then that fact should be allowed to be proved. Likewise, if it could be shown that the maker of the writing had a felony conviction that carried the risk of more than one year in prison that fact should also be allowed to be proved.

When the objection or comment is made that a document speaks for itself, the following analysis should be taking place: Why is the document being offered? Are the contents of the document admissible? Even if the contents are admissible, does the other party have a right to challenge the document’s contents? The answers to those three questions will usually determine whether the document does truly “speak for itself”.