Best Evidence Flashcards
Best Evidence
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required.
3 Components to Doctrine:
o Original** document must be produced (rather than using copy or oral testimony about document);
- In California, you can verbally talk about the terms of a K (In Federal court,
they want to see the original – Federal is much more strict in this area)
o To prove terms of a writing; and
o Rule does not apply if original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.
(They want the real thing/item in court – especially if going to be evaluating that item. Particularly with writing.)
Definitions of Writings/Recordings/Photographs
Writings and recordings consist of:
• Letters, words, numbers
• Set down by handwriting, typewriting, printing, photographing, mechanical or electronic recording, other form of data compilation
Photographs include still photographs, xray, video tapes, motion pictures
United States v. Duffy
Duffy convicted of transporting a stolen car. Testimony that in car were suitcases that had shirt with “D-U-F” written on it. Testimony, not producing the actual shirt.
Court found that letters on a shirt is not really a “writing” – more of a chattel – best evidence rule does not apply
Definition of Original Writing (v. Duplicate)
An original of a writing or recording is the writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing it. (ex. carbon copies = original, or same copy out of the computer at same time).
o Unless a term was doctored/changed – will look closer
o An original photograph includes the negative or any print from the negative (can
have multiple originals)
o If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original
Admissibility of Duplicate
A duplicate is admissible to the same extent as an original unless:
- A genuine question is raised as to the authenticity of the original; or
- In the circumstances it would be unfair to admit the duplicate in lieu of the original
Definition of Duplicate
A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately produces the original
- A digital photo print would count
- Xerox copy is a duplicate – admissible to same extent as original if the federal court feels like it (unless seems forged/tampered with)
Meyers v. United States
- Trial for perjury. Chief counsel testifies to defendant’s senate committee statements (he was there). There was also a transcript.
- Court: Can testify b/c he had personal knowledge.
Sylvania Electric Products v. Flanagan
So voluminous – may allow summary chart in If have so many originals, do not need to produce originals. As long as records available to opposing party to look through. If there is a dispute, judge will try to resolve it before putting voluminous records in front of jury.
Judge v. Jury
Judge: When the admissibility of other evidence of contents of writings, recordings, or photographs depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine (whether there was no fault)
Jury: When an issue is raised, the issue is for the trier of fact to determine:
(a) Whether the asserted writing ever existed, or
(b) whether another writing, recording, or photograph produced at trial is the original; or
(c) whether other evidence of contents correctly reflects the contents
