Best Evidence Rule

Question 1

What is the Best Evidence Rule?

Answer 1

A party who seeks to prove the contents of a writing must either produce the original writing, or provide an acceptable excuse for its absence; If the court finds the excuse is acceptable, the party may then use secondary evidence— oral testimony or a copy.
*NOTE: The definition of writing includes sound recordings, X-rays, and films.

Question 2

HYPO: Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, “I didn’t get what I ordered. The purchase order called for 3” jumbo shrimp and they delivered 1” mini- shrimp.” Which of the following would be a valid objection to Bubba’s testimony?

Answer 2

(A) The actual shrimp are the best evidence of what was delivered.

(B) The purchase order is the best evidence of what the contract required.

B - Best evidence rule only applies to writings, not to shrimp (or physical evidence)

Question 3

When does the Best Evidence Rule apply?

Answer 3

When a party is seeking to prove the contents of a writing.

1. The writing is a legally operative document, i.e., the writing itself creates rights and obligations. Examples: patent, deed, mortgage, divorce decree, written contract. (Real estate, trying to prove the terms of the deed, etc. Written K determines… )
2. Witness is testifying to facts that she learned solely from reading about them in a writing.

Question 4

HYPO: Tommy the Terrorist is charged with detonating a bomb. No one witnessed the detonation, but it was captured on film by an unmanned surveillance camera. Counterterrorism Agent Jack Bower testifies that he watched the film and it clearly shows Tommy was the bomber. Objectionable?

Answer 4

Yes - Jacks testimony violates the best evidence rule, film not a legally operative doc (does not create the bombing) - Jack has no personal knowledge, everything he knows comes from the film and for the purposes of the best evidence rule a film is a writing
-Should produce the film, rather than rely on Jack’s memory of what is in the film

Question 5

HYPO: Agent Jack Bower, claiming he worked a 24-hour shift, sues Boss for nonpayment of wages and failure to reimburse for expenses.

(a) Without producing any documents, Jack testifies, “I worked 24 hours and my expenses were $15 million.” Boss objects—“Best evidence rule. Produce the time sheets and expense receipts.”
(b) Without producing any documents, Boss testifies: “Jack’s time sheets show he worked only 20 hours, and the receipts show only $10 million in expenses.”

Answer 5

(a) Objection overruled, best evidence rule does not apply, expense sheets and time sheets not legally operative, do not create hours, Jack has personal knowledge of hours and expenses
(b) Does violate the best evidence rule, boss has no personal knowledge, all boss knows comes from the readings

Question 6

For purposes of the Best Evidence Rule What qualifies as the “original writing”?

Answer 6

1. Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out.
2. duplicate—any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy). Rule on duplicates: duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.
3. handwritten copy is neither an original nor duplicate.

Question 7

For purposes of the Best Evidence Rule what are Excuses for non-production of originals?

Answer 7

1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process

Question 8

What are “escapes” or exceptions to the Best Evidence Rule?

Answer 8

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 - Doc the judge declares not important in this case; discretionary - ie Plumber takes the witness stand giving creds, objection best evidence rule - need license to prove, overruled collateral doc.
   * If court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence.