Article X. Contents of Writings, Recordings, and Photographs

Question 1

What is included in the concept of a “writing”?

Answer 1

A "writing" consists of letters, words, numbers, or their equivalent set down in any form.
FRE 1001(a) (2012)

Question 2

What is included in the concept of a “recording”?

Answer 2

A "recording" consists of letters, words, numbers, or their equivalent recorded in any manner.
FRE 1001(b) (2012)

Question 3

What is included in the concept of a “photograph”?

Answer 3

A "photograph" means a photographic image or its equivalent stored in any form.
FRE 1001(c) (2012)

Question 4

What is included in the concept of an “original writing” and “original recording?

Answer 4

An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it.  
FRE 1001(d) (2012)

Question 5

What is included in the concept of an “original” for electronically stored information?

Answer 5

For electronically stored information, "original" means any printout -- or other output readable by sight -- if it accurately reflects the information.  
FRE 1001(d) (2012)

Question 6

What is included in the concept of an “original photograph”?

Answer 6

An "original of a photograph includes the negative or a print from it.
FRE 1001(d) (2012)

Question 7

What is included in the concept of a “duplicate”?

Answer 7

A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
FRE 1001(e) (2012)

Question 8

Generally, when is an “original” required?

Answer 8

An original writing, recording, or photograph is required in order to prove its content unless the FRE or a federal statute provides otherwise.
FRE 1002 (2012)

Question 9

When is a “duplicate” admissible?

Answer 9

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
FRE 1003 (2012)

Question 10

When is an “original” not required, but other evidence of the content, writing, recording, or photograph admissible?

Answer 10

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
FRE 1004 (2012)

Question 11

What is included in the concept of a “duplicate”?

Answer 11

A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
FRE 1001(e) (2012)

Question 12

When is an “original” not required, but other evidence of the content, writing, recording, or photograph admissible?

Answer 12

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
FRE 1004 (2012)

Question 13

What is included in the concept of a “duplicate”?

Answer 13

An official record of a document that was recorded or filed in a public office as authorized by law.
FRE 1005 (2012)

Question 14

What is included in the concept of a “public record”?

Answer 14

An official record of a document that was recorded or filed in a public office as authorized by law.
FRE 1005 (2012)

Question 15

When may a copy of a public record be admitted?

Answer 15

A proponent may use a copy to prove the content of an official record if these conditions are met:
- the record or document is otherwise admissible; and
- the record or document is certified as correct in accordance with FRE 902(4) or is testified to be correct by a witness who has compared it with the original.
FRE 1005 (2012)

Question 16

When may other evidence, beyond a copy, be admitted to prove the content of a public record?

Answer 16

If no copy of a public record can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
FRE 1005 (2012)

Question 17

When may summaries be admitted to prove content and what restrictions apply?

Answer 17

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.
Restrictions:  The originals or duplicates must be made available for examination or copying, or both, for other parties at a reasonable time and place.  The court may order the proponent to produce them in court.
FRE 1006 (2012)

Question 18

What types of evidence may be admitted to prove the content of writings, recordings, and photographs?

Answer 18

1) The original (FRE 1002 (2012))
2) A duplicate (FRE 1003-4 (2012))
3) For public records: a copy (FRE 1005 (2012))
4) For voluminous evidence: A summary (FRE 1006 (2012))
5) A testimony or statement (FRE 1007 (2012))

Question 19

Who determines whether the proponent has fulfilled the factual conditions for admitting other evidence to prove content of writings, recordings, and photographs?

Answer 19

Ordinarily, the court determines whether factual conditions are met for purposes of FRE 1004 and 1005. A jury determines (FRE 104(b)) any issue on whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content
FRE 1008 (2012)

Question 20

Will a clear violation of the Best Evidence Rule always produce grounds for reversal?

Answer 20

No. See US v Winkle, 587 F.d 705 (5th Cir. 1979).

If testimony or other secondary evidence is erroneously received in lieu of the original, appellate courts should inquire whether the party claiming error disputes the accuracy of the secondary evidence. If the objection goes only to form, the court should normally find the violation to be harmless error. If testimony or other secondary evidence is erroneously received in addition to the original, it is usually harmless as simply duplicative of admissible evidence. If a court erroneously requires an original when secondary evidence should have been allowed, again the error is normally harmless provided the original was in fact produced.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.1 (4th ed. 2012)

Question 21

What is the Best Evidence Doctrine?

Answer 21

FRE 1002. That the original be produced and excludes secondary evidence in lieu thereof, except where the original is shown to be unavailable or secondary evidence is allowed by rule or statute.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.1 (4th ed. 2012)

Question 22

What types of evidence does the Best Evidence Rule encompass?

Answer 22

Limited to writings, recordings, and photographs. This includes writings like transcripts and musical scores and photographs like drawings (for purposes of Intellectual Property).

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.1 (4th ed. 2012)

Question 23

What are the policy reasons surrounding the Best Evidence Doctrine?

Answer 23

1) Writings occupy a central position in the law. The written word has special sanctity, justifying more stringent proof requirement.
2) When the contents of a writing are in issue, any evidence other than the writing itself is distinctly inferior..
3) Production of the writing, recording, or photograph ensures completeness and prevents any segment from being presented out of context.
4) The rule serves as a safeguard photograph itself is sometimes necessary to resolve disputes concerning authenticity or claimed alteration.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.1 (4th ed. 2012)

Question 24

What are considered reliable modern mechanical processes used in duplication?

Answer 24

All common copying techniques that do not engage human faculties to comprehend the original and write it down or repeat it orally. Excluded from this are subsequently produced copies prepared by manual methods, such as handwriting or typing.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.1 (4th ed. 2012)

Question 25

What must be shown for authentication of a duplicate?

Answer 25

1) Qualification as the kind of mechanical copy described in FRE 1001(e)
2) Correctly reflects the content of the source document
3) The source document is itself authentic (an “original” of something that counts in the case such as a contract, a letter, or the like.”)

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.5 (4th ed. 2012)

Question 26

May a duplicate, authenticated under 901(a), nevertheless be excluded by a trial judge?

Answer 26

Yes. The trial judge has discretion to exclude the duplicate if it would be unfair. This “unfair” standard includes gaps or omissions, poor quality of the duplicate, and destruction or loss due to bad faith.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.5 (4th ed. 2012)

Question 27

What is the core concept underlying FRE 1002?

Answer 27

Proof of content. Content must be proved for two reasons:

1) Requirement of writing, recording, or photograph by substantive law for an element of a charge, claim, or defense.
2) Reliance on content to prove a point relevant to the litigation, though the proof of content is not required by substantive law.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.6 (4th ed. 2012)

Question 28

After evidence is admitted as an original, under FRE 1002, does it still play a role when testimony is used to interpret the content?

Answer 28

No. The concerns of FRE 1002 end after the evidence is admitted to prove its content. In this situation, FRE 701 and 702 would control the issue. FRE 611(a) controls when a writing is to be read, a recording played, or a photograph shown to the jury.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.6 (4th ed. 2012)

Question 29

When may testimony substitute admission of a writing, recording, or photograph?

Answer 29

Testimony may be used to prove content without admitting the writing, recording, or photograph when it is based on independent knowledge (that is, knowledge learned outside the writing, recording, or photograph). A witness generally may not testify to the content of written rules without producing the rules or showing their unavailability. When testimony is based on knowledge acquired from mixed sources, the testimony should be excluded on where it is substantially certain that the witness is merely reiterating the content of the writing, recording, or photograph without relating significant, independently acquired knowledge.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.7 (4th ed. 2012)

Question 30

When may a court reject the duplicate and require production of the original?

Answer 30

1) Where a genuine question is raised as to the authenticity of the original
2) Where in the circumstances it could be unfair to admit the duplicate in lieu of the original.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.8 (4th ed. 2012)

Question 31

Where a duplicate is admitted as a copy of a public record, under FRE 1005, may it be excluded generally under FRE 1003?

Answer 31

No. If a copy offered under FRE 1005 satisfies the requirement of that rule, a court lacks the discretion it would otherwise have to exclude it under FRE 1003.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.8 (4th ed. 2012)

Question 32

May a transcript be offered to proved the content of an original recording?

Answer 32

A transcript does not qualify as a duplicate under FRE 1001(e), because it is prepared manually rather than mechanically. Unless a statute otherwise exists, transcripts may not be admitted as more than a supplement. If admitted as a supplement, it must be authenticated by the person who transcribed. However, unless the parties stipulate otherwise, a transcript is not admissible as substantive evidence.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.9 (4th ed. 2012)

Question 33

If a showing that an original is unavailable, must a duplicate be admitted, if it exists, to prove its contents?

Answer 33

No. Even if a duplicate is available to the proponent, its production is not required. Testimony or other forms of secondary evidence may be received to prove content of the original. However, a trial judge is likely to take a dim view of any attempt to offer other forms of proof if the proponent has a duplicate at the ready.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.10 (4th ed. 2012)

Question 34

Must a showing that an original is unavailable be provided before a duplicate may be admitted?

Answer 34

No. Even if a duplicate is available

Question 35

For purposes of the Best Evidence Rule, who decides whether an original is too voluminous for convenient examination in court?

Answer 35

The judge makes the decision prior to admittance. NOTE: The admission of summaries for demonstrative purposes are determined based on FRE 611(a) and 403.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.16 (4th ed. 2012)

Question 36

What is necessary to prove the foundation for authenticity of summaries?

Answer 36

Establishing the admissibility of the originals and producing sufficient evidence to support a finding that the summary is an accurate representation of the originals. Expert testimony may be utilized.

Christopher B. Mueller, et. al., EVIDENCE: Practice Under the Rules § 10.16 (4th ed. 2012)