Contents of writings, recordings, and photogrpahs

Question 1

analyzing writings: the issues the proponent must overcome regarding admissibility are:

Answer 1

(“OPRAH”)

1. O: Original writing rule = Best Evidence Rule
2. P: Privilege – is the document privileged?
3. R: Relevancy
4. A: Authentication – is the writing genuine?
5. H: Hearsay – do any hearsay problems exist?

Question 2

Best Evidence Rule

Answer 2

where the contents of a document are in issue, the original document is required

*NO testimony as to contents UNLESS the original is excused

Question 3

an original document or writing

Answer 3

An original document or writing includes either the original itself or a duplicate.

There are three substitutes for an original:
(1) a duplicate;
(2) a certified copy of a public record; or
(3) summaries of voluminous records.

Question 4

two main situations for best evidence rule

Answer 4

1. legally operative documents: Where the writing has independent legal significance (i.e., the writing itself creates or destroys a legal relationship).
   examples: contract, will, deed, driver’s license
2. document-dependent testimony: where the testimony is reliant on the writing, not on personal knowledge.

Question 5

independent source rule

Answer 5

Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the Best Evidence Rule does not apply.

examples: sales receipt, birth certificate

caveat: If, however, the receipt or certificate is offered as evidence to prove a birth, death, sale, etc., then the original must be produced, absent good cause
(“I remember paying the bill,” but may not testify, “My records show I paid the bill,” unless the receipt is produced.)

Question 6

when evidence where original is not required

Answer 6

the original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if CLOTS applies:

1. Collateral: Where the writing, recording, or photograph is not closely related to a controlling issue
2. Lost: all the originals have been lost or destroyed, unless proponent destroyed them in bad faith
3. Opponent: the opponent has possession of the original and has refused to deliver it
4. Testimony or admission by opponent
5. Subpoena

Question 7

Public record contents

Answer 7

The contents of an official record may be proved by copy, certified as correct, or by witness testimony upon comparison with the original.

Question 8

summaries of content

Answer 8

contents of voluminous writings, records, or photos may be presented in a chart, summary, or calculation

(originals must be made available at a reasonable time and place for examination/copying)

Question 9

testimony or admission of a party- content of a writing

Answer 9

Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the non-production of the original writing because (usually) it is not in their possession.

Question 10

functions of jury deciding content

Answer 10

-whether the asserted writing (the original) ever existed;

-whether another writing produced at trial is the original;

-the accuracy of the writing; and

-the jury has the final decision on whether the item is genuine and how much weight to give it.

Question 11

judge’s role for content

Answer 11

The judge determines preliminary facts such as:

-whether the Best Evidence Rule applies to the writing;

-whether good cause exists for non-production of the original; and

-whether summaries are admissible.