Cali Evidence Questions Flashcards
Officer Obie searched Bloggins’ house and seized
(1) a tape recorded message on Bloggins’ answering machine which said, “Bloggins, do you have any more marijuana you can sell me?”
(2) a ledger containing the handwritten notation, “1 baggie of pot to Fred–$20,” and
(3) a home video of Bloggins in his back yard next to what is obviously a marijuana plant.
To which, if any, of these does the rule apply?
1,2, and 3
To prove the contents of the serial number on an allegedly counterfeit $20 bill, the witness offers to testify that the serial number on the bill was B 34506170 A.
Is the witness proving the contents of a writing?
yes: This is correct. A writing “consists of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” FRE 1001(1). The serial number constitutes “numbers” set down by “printing,” so it is clearly a writing.
While making repairs to the Tower of London, workers found the skeleton of young Edward V imprisoned in a secret, stone chamber. Prior to his death, he had scratched on one of the stones, “Richard III killed me.” In the prosecution of Richard III, the prosecution asks the workman who read and removed the stone to testify to this inscription.
Is this stone a writing?
Yes: This is correct. The definition of writing is very broad, including “handwriting . . . mechanical . . . or other form of data compilation.” FRE 1001(1). The rule may not recognize books in running brooks, but sermons in stone would qualify as writings.
Plaintiff contends that his drawings of Randy Rodent were appropriated by defendant, Disney, to create Mickey Mouse. Plaintiff offers to describe and sketch Randy Rodent for the jury. Disney objects, arguing that the original sketches must be produced because they are “writings” within the meaning of the rule.
Should the trial judge agree with Disney?
Yes
The best answer is “Yes.” The original drawings are a writing because FRE 1001(1) defines a writing to include “letters, words, . . . or their equivalent.” If a picture is worth a thousand words, then a picture is the equivalent of words. In addition, FRE 1002 specifically includes still photographs, X-rays, and motions pictures. Since each is a picture or series of pictures, there is a very strong analogy to paintings and drawings. In Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), cert. den., 484 U.S. 826, plaintiff contended that Lucasfilm had copied the Imperial Walkers (“The Empire Strikes Back”) from plaintiff’s earlier drawings. The court held that the original drawings were “writings,” and, therefore, governed by the best evidence rule
In the movie “Presumed Innocent,” the prosecution failed to produce the beer glass from the murder scene on which the fingerprints of the defendant, Harrison Ford, had been found. When the prosecution’s expert offered to testify that his comparison of the prints on the missing glass showed that they had been made by the defendant, the defendant argued that the testimony must be excluded.
Is the prosecution attempting to prove the contents of a “writing” (the print on the glass)?
NO
Correct. Writings and recordings, the only things to which the rule applies, consist of “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” FRE 1001(1). A fingerprint left at the scene fits none of these. Note that records made by the expert about his observations may well be writings, but the question does not present any issue with respect to them.
How would you treat a thumbprint impressed as a signature–e.g., a print imposed on an identification card or a fingerprint card created during the booking process?
Immediately following the collision, plaintiff photographed the intersection. Plaintiff offers to describe the intersection from memory, but defendant objects to the testimony on the grounds that the photograph is required under the best evidence rule.
How should the judge rule on the objection?
Overrule
The judge should OVERRULE the objection. Even though the photograph may be better evidence, it is not required by the “best evidence” rule unless the party is proving its contents.
During questioning by Officer Obie at the police station, Bloggins states, “I confess. I did it and I’m glad.” Unknown to Bloggins, this statement was contemporaneously recorded on video tape. Officer Obie offers to testify to what he heard Bloggins say, and Bloggins objects that the video tape is required under the best evidence rule.
How should the judge rule?
Overrule
Correct. The judge should OVERRULE the objection. Even though the video tape may be better evidence than Officer Obie’s recollection, still he is not testifying to the contents of the tape. He is testifying directly to what he personally observed and heard, so the best evidence rule does not require production of the tape.
In the previous question, Bloggins also objects to the testimony of Officer Kratzske, who was not present at the questioning of Bloggins. Officer Kratzske offers to testify, “I have reviewed the video tape, and Officer Obie is correct in his recollection of what Bloggins said.”
Should the judge sustain the objection?
Yes: This is correct. Officer Kratzske is testifying to the contents of the video tape (a writing under FRE 1001(2)) rather than to his personal knowledge of what he saw or heard.
In a suit to rescind the sale of a car, plaintiff offers to testify that she gave defendant $500 for the car. Defendant objects, contending that the receipt he gave her is the best evidence.
Should the judge sustain this objection?
No: Plaintiff is testifying directly to the exchange of money, not to the contents of the writing. The fact that the transaction happened also to be memorialized in a writing, like the fact that the intersection had been photographed or the confession video taped, does not require production of the original unless the proponent attempts to prove the contents of the writing. Thus far, plaintiff has not attempted to do so.
In the same action, plaintiff testifies that she knows $500 is the correct amount because she has the receipt for $500 at home. Defendant objects to this testimony, arguing that plaintiff must produce the original receipt.
How should the judge rule?
Sustain: Since she is testifying to the contents of the receipt, the rule applies.
In a suit to rescind the sale of a house, plaintiff offers to testify that the written contract of sale provided that the house was free of all liens or encumbrances. Other evidence shows that the house was subject to a large mechanic’s lien. Defendant objects, arguing that the contract itself must be produced. How should the judge rule?
Sustain: Correct. This is one of the strongest cases for application of the rule–proof of the contents of a written contract.
The United States charges the Metropolis Opera Company with mounting an obscene opera, “Salome.” Police officers attended the production and offer to testify that on stage they saw nude dancing and simulated sex with a severed head. Following the performance, they seized the score and libretto. The Opera objects that the written score and libretto are required under the best evidence rule.
Should the judge sustain the objection?
No: Note that the Opera is charged with an obscene performance, and the officers are testifying directly to the performance.
The F.B.I. raided the Metropolis Opera Shop and seized video tapes of “Salome.” The United States charged the Opera with selling obscene video tapes. The agents offer to testify to what they saw when they played the tapes. The Opera objects to the testimony, arguing that the best evidence rule requires the admission of the tapes themselves.
Should the judge sustain the objection?
Yes: The tape is a “writing” (FRE 1001(2)), the charge is selling an obscene tape, and the agents are attempting to prove the contents of the tape by testifying to what they saw when they played it. Now let’s try yet another variation.
The F.B.I. agent offers to testify that he recognizes Bloggins as the bank robber from a surveillance photo taken at the time of the robbery. Bloggins objects to the testimony, arguing that the F.B.I. must produce the photo.
Should the judge sustain the objection?
Yes: The agent did not witness the robbery, so the agent’s knowledge comes only from the photo (a “writing” under FRE 1001(1), (2)). Thus, when he testifies that he recognizes Bloggins as the person in the surveillance photo, he is proving that the content of the photo includes the image of Bloggins.
