Contents of Writings, Recordings, and Photos

Question 1

What is a Writing?

Answer 1

Any form of letters, words, numbers, or their equivalent.

Question 2

What is a Recording?

Answer 2

Any manner of letters, words, numbers, or their equivalent.

Question 3

What is a Photograph?

Answer 3

Any photographic image or its equivalent stored in any form

Question 4

Three Substitutes for an Original

Answer 4

• Duplicate
• Certified copy of a public record
• Summaries of voluminous records

Question 5

What is an Original Writing?

Answer 5

-An original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it.

Question 6

“Original” for ESI

Answer 6

Any printout or other output readable by sight if it accurately reflects the information.

Question 7

“Original” of a Photo

Answer 7

Includes the negative or a print from it.

Question 8

What is a Duplicate?

Answer 8

• Any counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. However, the FRE do not include a document hand-copied from an original as a duplicate.
• A duplicate of an original item/writing is generally acceptable as proof of its content.

Question 9

Best Evidence Rule

Answer 9

An original writing, recording, or photograph is required in order to prove its content unless the FRE or a federal statute provides otherwise.

Question 10

When the Best Evidence Rule Applies

Answer 10

Only applies where the contents of a writing are at issue such as:

• When a witness without personal knowledge introduces the contents of a document into evidence as proof of what it says
• Where the content of a writing directly affects legal rights that are at issue in the case
• (Document-dependent testimony)- the Ws testimony is reliant on the writing (derives from writing itself)

Question 11

When the Best Evidence Rule Does Not Apply

Answer 11

• When first-hand testimony, rather than the record of the event, is used to prove the content of the record (but if the plaintiff seeks to introduce the findings of a medical report, and does not have first-hand knowledge, the best evidence rule applies).
• (Physical objects)- are not within the best evidence rule

Question 12

Best Evidence Rule: Written Transactions

Answer 12

The best evidence rule practically applies to writings embodying written transactions. It does not apply to writings that are not essential or primary repositories of the facts recorded (anything else other than written transactions (e.g. log books)).

Question 13

Independent Source Rule

Answer 13

Where a fact to be proved has a source independent from the writing, then the contents are not in issue and the Best Evidence Rule does not apply.

Question 14

Secondary Evidence of a Writing

Answer 14

Is allowed where the fact at issue is not material to the litigation (FRE 1004d).

Question 15

Admissibility of Duplicates

Answer 15

A duplicate is admissible to the same extent as an original unless:

• a genuine question is raised about the original’s authenticity; or
• the circumstances make it unfair to admit the duplicate (e.g. a copy of a deed that is missing key information)

Question 16

When Original is not Required and Secondary Evidence of Content are Admissible (CLOTS)

Answer 16

• (Collateral)- writing, recording, or photo is not closely related to a controlling issue
• (Lost)- when all the originals are lost or destroyed, and not by the proponent acting in bad faith
• (Opponent)- the party against whom the original would be offered: had control over original; was at the time put on notice that the original would be subject of proof at a trial or hearing; and failed to produce it at a trial or hearing
• (Testimony)- or admission by opponent.
• (Subpoena)- the original cannot be obtained by any available judicial procedure.

Question 17

Summaries to Prove Content

Answer 17

• The proponent of evidence may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.
• But the proponent must make the originals or duplicates available for examination or copying by other parties at a reasonable time and place.
• The court may also order the parties to produce the originals or duplicates in court.

Question 18

Testimony or Statement of a Party Opponent to Prove Content

Answer 18

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered, without accounting for the original.

Question 19

Functions of the Court and Jury For Admitting Other Evidence of the Content of a Writing, Recording, or Photo

Answer 19

In a jury trial, the jury determines any issue about whether

• an asserted writing, recording, or photograph ever existed,
• a proposed writing, recording, or photo at the trial or hearing is the original; or
• other evidence of content accurately reflects the content.