Burning Romeo

Action for libel. P testifies that on the day before his wedding his fiancee showed him the allegedly libelous letter written to her by D but that the letter is now unavailable because P burned it. P's counsel asks him to testify to the contents of the letter. D objects.

What ruling and why?

This problem was inspired by the nineteenth century antics of "The Count Joannes," born "George Jones" in 1810. In the course of his career, Joannes instituted at least 16 libel suits, gained a conviction for barratry in Boston and admission to the Bar in New York, and played the role of Romeo a number of times, both on and off stage. The Count, who believed that his power of speech gained him in "one hour with a lady ... [what took] three months with mere clods of humanity," brought his first libel suit pro se (Joannes v. Bennett, 87 Mass. (5 Allen) 169 (1862)):

[The Count] was apparently paying court to an eligible widow of the city. She was living with her parents, and both she and they were active in the church, she singing soprano in the church choir. Her name remains unknown, but her minister's name was Bennett. Apparently having no high opinion of the Count's qualifications as a son-in-law, her parents appealed to this minister for help and, concurring in their view, the latter undertook to write the lady in question attempting to dissuade her from the match. She promptly turned the letter over to her suitor, who just as promptly sued the Rev. Mr. Bennett for libel, the first gun in a salvo of litigation that was to continue for a dozen years or more.

The Count appeared as his own counsel, although there is no indication that he had ever been admitted to the Massachusetts Bar. His case was considerably weakened by the fact that he had destroyed the letter and was unable to produce it in court. His damages were also considerably mitigated due to the circumstance that despite the remonstrance of her parents and the Rev. Bennett, he subsequently married the lady. A more serious obstacle than even their disapproval, however, would appear to be the continued existence of Mrs. Melinda Jones, still legally his wife; but fortunately this was known neither to the lady, her parents, the court, nor the Rev. Bennett, but only to the Count, who chose not to reveal it, and Melinda, who was not present. In any event, the jury returned a verdict in his favor for $2,000.00.

On appeal the case was reversed and a new trial ordered, on the ground that the Count, having destroyed the letter under unexplained circumstances, should not have been permitted to introduce secondary evidence of its contents. The outcome of the second trial does not appear....

Armstrong, The Count Joannes: A Vindication of a Much-Maligned Man, 36 A.B.A.J. 829 (1956).