Best Evidence Rule

Question 0

Purpose of Best Evidence Rule

Answer 0

Reduce risk of fraud, forgery or mistake

Question 1

Original Document Rule/Best Evidence Rule - Rule 1002

Answer 1

An original writing, recording, or photograph is required to prove the contents if they are in issue

unless exception applies.

Question 2

Items Covered by Best Evidence Rule

Answer 2

every tangible process to record words, letters, numbers, pictures, and sounds

Question 3

Where the Best Evidence Rule Applies

Answer 3

Only where the contents are in issue

1. Legally Operative Documents - writing has Independent Legal Significance
2. Document Dependent Testimony - testimony relies on writing, not personal knowledge

Question 4

Where Best Evidence Rule is NOT applicable

Answer 4

Independent Source Rule

fact has a source independent of the writing,
then contents are NOT in issue - rule does not apply.

ie. Sales receipt, birth certificate, death certificate, marriage certificate.
* if receipt certificate is offered as evidence to prove the sale, death, marriage, then original must be produced, absent a good showing.

Question 5

Inscribed Chattels and Best Evidence Rule

Answer 5

Not subject to best evidence or hearsay rule

Question 6

Substitutes for an Original (3)

Answer 6

1. Xerox copies
2. Certified Copy of a Public Record
3. Summary of Voluminous Records - Rule 1006

Duplicates are allowed if no genuine question of authenticity

Question 7

Other Evidence of Contents - Rule 1004

Other evidence of contents of a writing is admissible if LOCS applies

Answer 7

An original is not required, and other evidence of the contents of a writing will be admissible if LOCS applies.

(L)ost - originals destroyed or lost unless proponent destroyed them in bad faith
(O)pponent - in possession - refuses delivery even on notice of court or pleadings
(C)ollateral - writing not closely related to a controlling issue or reference to a writing is not to prove contents.
(S)Subpoena - original cannot be obtained by any available procedure.

Question 8

Public Records Rule 1005

Answer 8

Contents of official records may be proved by copy,
either certified as correct
or by witness testimony on comparison with original.

Question 9

Summaries - Rule 1006

Answer 9

Contents of voluminous writings,
not conveniently examined in court
may be presented in chart, summary, or calculation form.

Question 10

Foundation for Summaries Rule 1006

Answer 10

1. Demonstrate records are admissible hearsay.
2. Provide opponent reasonable pre-trial access.
3. Authentication by preparer

Question 11

Testimony or Written Admission of a Party - Rule 1007

Answer 11

Contents of a writing may be proved by testimony, deposition, or admission of the opposing party without accounting for the non-production of the original writing

Question 12

Functions of the Court and Jury - Rule 1008

Answer 12

Finder of fact Decides:

1. Whether writing existed
2. Whether it is the original
3. The accuracy
4. Whether it is genuine and how much weight to give it.

Judge Determines Preliminary Facts (Rule 104(b))

1. if Best Evidence Rule applies
2. writing is an original or duplicate
3. good cause exists for non-production
4. admission of summaries
5. admissibility dependent on the fulfillment of a condition of fact.

Question 13

Legally Operative Documents -

Answer 13

where writing has Independent Legal Significance

BEST EVIDENCE RULE APPLIES

Question 14

Document Dependent Testimony -

Answer 14

Where testimony is reliant on the writing and not on personal knowledge -

x-rays -

doctor testifies that plaintiffs lungs show characteristics of emphysema, x-ray subject to rule

BEST EVIDENCE RULE APPLIES