Best evidence rule

Question 1

When does it apply?

Answer 1

when party wants to prove content of writing, recording, photo

not usually ordinary photos where W can ID them as representation of what they saw

Question 2

If rule applies, what must party offer?

Answer 2

1) original; OR
2) duplicate (exact copy) UNLESS; OR
- —genuine issue re: authenticity of original
- —unfair to admit the duplicate
3) summary if original/duplicate provided ot opposing party; OR
- —opposing party can cross/offer new summary
4) a deposition or written admission of the opponent which proves the contents

Question 3

what can a W testify to?

Answer 3

They CANNOT testifying to the contents of the evidence/document

They CAN testify to things they observed

Question 4

What if party does not offer duplicate or original?

Answer 4

must explain why!

secondary evidence is ONLY permitted if:

• original lost or destroyed (not in bad faith)
• original not obtainable by any judicial process
• original is in opponent’s possession and they haven’t produced it
• evidence is not closely related to a controlling issue
• the issue is whether document ever existed

Question 5

government documents?

Answer 5

Exempt if certified or W compared to original

do not need to explain why original/duplicate not produced

Question 6

issues for jury to decide

Answer 6

• what contents are
• whether evidence ever existed
• whether another doc offered at trial is actually the original
• whether over evidence correctly reflects the contents