Best Evidence Rule

Question 1

Best Evidence Definition

Answer 1

1) a party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for absence
2) if there is an acceptable excuse, party may use secondary evidence

Question 2

When best evidence applies

Answer 2

1) legally operative document like deeds, patent, mortgage, divorce decree, written conduct
2) witness is testifying to facts that she learned solely from reading about them in writing (or see in video)

Question 3

When best evidence doesn’t apply

Answer 3

when a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact

Question 4

Original writing

Answer 4

1) whatever the parties intended as the original
2) any counterpart intended to have the same effect
3) any negative of film or print of film
4) computer print out

Question 5

Duplicate

Answer 5

1) counterpart produced by any mechanical means that accurately reproduced the original
2) ADMISSIBLE to the same extent as original UNLESS it would be unfair or genuine question is raised as to the authenticity of original

Question 6

Excuses for non-production of original

Answer 6

1) lost or cannot be found with due diligence: look in every reasonable location
2) destroyed without bad faith
3) cannot be obtained with legal process
4) court must be persuaded by PREPONDERANCE of the evidence that excuse has been established

Question 7

Best Evidence Rule: exceptions

Answer 7

1) voluminous records
2) certified copies of public records
3) collateral documents that are not important to the merits: judge has discretion