Best Evidence Rule

Question 1

Best evidence rule

Answer 1

Definition: A party who seeks to prove the contents of a writing, she 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

Def of writing includes recording, Xrays and films.

For ex: person orders jumbo shrimp, and gets mini shrimp, pursuant to a written order. What is valid objection to the testimony?
The actual shrimp are the best evidence
Or
The purchase order is the best evidence of what the k required
This is the right one—best evidence only applies to writings. We want the jury to see the original purchase order rather that rely on memory of what was in the writing.

Question 2

When does the best evidence rule applies

Answer 2

when a party is seeking to prove the contents of a writing.
Two principal situations:
a. The writing is a legally operative document, i.e. it creats rights and obligations. Ex: patent, deed, mortgage, divorce decree, written k
b. OR witness is testifying to facts that she learned solely from reading about them in a writing.

i. For ex. someone who witnesses a bomb only on a film doesn’t give him right to testify to the film. The witness must have personal knowledge of the bombing, OR must produce the film if the witness only has knowledge because of the writing.
ii. Witness is seeking to prove contents of the writing. We don’t want witness memory of film, we want jury to see film itself.
iii. Don’t want witness INTERPRETATION of a writing. Too far removed.

Question 3

When best evidence rule doesn’t apply

Answer 3

BUT! Best evidence rule doesn’t apply if witness with personal knowledge testifies to a fact that exists independently of a writing that happens to record that fact

a. For ex.: witness witnesses the bombing, at the same time it’s being filmed. Here, you can allow witness testimony without having to produce the film version.

i. For example. Someone perjures himself. At trial, witness testifies to what that person said to perjure himself. The witness testifying to the perjury does not violate best evidence rule.
ii. Transcript of perjury can still be introduced as public record or on cross-examination. Transcript is not legally operative document→ perjury happens even if it’s not recorded.

c. For ex.: Witness testifying that he worked 24 hours and spent 15 million dollars. Not having receipts/ expense sheets is not violation of best evidence rule
i. Receipts and time sheets are not legally operative and witness has personal knowledge of the time he worked and how much he spent.

Question 4

What qualifies as an original writing

Answer 4

a. 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
i. Sometimes counterparts can both be original, like 2 versions of lease one each for L and T. both are originals.
b. DDuplicate—any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy)
i. Rule: they’re admissible to the same extent as original UNLESS it would be unfair (for ex. photocopy is B&W and original is color, or is fuzzy) or genuine question is raised as to authenticity of original
c. Handwritten copy is not an original nor is it a duplicate.

Question 5

Excuses for non-production of an original

Answer 5

a. Lost or cannot be found with due diligence
b. Destroyed without bad faith
c. Cannot be obtained with legal process – beyond subpoena power, for ex. it’s in a swiss bank account.
d. Court must be persuaded by a preponderance of the evidence that excuse is valid, then can use secondary evidence to prove the ocntents of the writing.
i. Like testimony based on memory
ii. Handwritten copy

Question 6

Escapes

Answer 6

a. Even if you have the original and youre trying to prove the contents might get an escape. 3 possible escapes
i. Voluminous records can be presented through a summary or a chart, provided the original would be admissible and are available for inspection
ii. Certified copies of public records, so we can keep them in the public records
iii. Collateral documents—document that is not very important to the merits of the case.
1. Judge’s discretion
2. If it’s collateral, contents may be proven by secondary evidence

Question 7

Functions of court and jury

Answer 7

usually its up to a court to determine admissibility. However, following are left to a jury

a. Whether the original existed
b. Whether a writing, recording, or photo is original
c. Whether the evidence offered really reflects the contents of the original