best evidence rule

Question 1

best evidence rule

Answer 1

Definition
When BER applies
When BER does not apply
Original writing
Excuses for non-production of original
Escapes

Question 2

best evidence rule

definition

Answer 2

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 acceptable, the party may then use secondary evidence (oral testimony or copy)
Includes x-rays, sound recordings, and films

Question 3

best evidence rule

When BER applies

Answer 3

When a party seeks to prove the contents of a writing.
2 principal situations:
1. The writing is a legally operative document (the writing creates obligations, like K, promissory note)
2. Witness is testifying to facts that she learned solely from reading about them in a writing

Question 4

best evidence rule

When BER does not apply

Answer 4

When a witness w/personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Question 5

best evidence rule

original writing

Answer 5

What qualifies as an original writing?

1. Whatever the parties intended as the original (i.e. any counterpart intended to have the same effect, any negative of film or print from the negative, computer printout)
2. Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original.
   2a. Duplicate is admissible to the same extent as original UNLESS it would be unfair (copy is fuzzy) or genuine question is raised as to authenticity of original
3. Handwritten copy is neither an original nor duplicate.

Question 6

best evidence rule

excuses for non-production of original

Answer 6

1. Lost or cannot be found w/due diligence
2. Destroyed w/o bad faith
3. Cannot be obtained w/legal process

Question 7

best evidence rule

escapes

Answer 7

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 (not important to the merits of the case). If court in its discretion determines a writing to be collateral, contents may be proven by secondary evidence.