Best evidence rule Flashcards
What is the best evidence rule?
A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absense.
What if the court finds your excuse for the reason you don’t have an original writing?
The party may then use secondary evidence being oral testimony or a copy.
What does the definition of writing include?
Sound recordings, x-rays and film.
When does the best evidence rule apply?
When a party is seeking to prove the contents of a writing. This can either be where the writing is a legally operative document in the present case or the witness is testifying to facts that they learned solely from reading about them in a writing.
When does the best evidence rule not apply?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.
What qualifies as an original writing?
1) Whatever the parties intended as original
2) A duplicate (admissible to same extent as original as long as it wouldn’t be unfair) NY photocopies are acceptable as substitutes only if made in ordinary course of business.
3) Handwritten copy is neither original or duplicate.
What are the three excludes for non-production of an original?
1) Lost or cannot be found with due diligence
2) Destroyed without bad faith.
3) Cannot be obtained with legal process.
How might you escape the best evidence rule?
1) Voluminous records can be presented through a summary or chart provided the original records would be admissible and they are available for inspection
2) Certified copies of public records
3) Collateral documents.
