Contents of Writings, Recordings, and Photos

Question 1

Best Evidence Rule

Answer 1

An original writing, recording, or photograph is required in order to prove its content unless the Fed- eral Rules of Evidence or a federal statute provides otherwise.

Question 2

When does the Best Evidence Rule apply?

Answer 2

When the contents of a writing are at issue

Question 3

When does the Best Evidence Rule not apply?

Answer 3

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 …. Independent Source Rule

Question 4

Admissiblity of Duplicates

Answer 4

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.

Question 5

3 Substitutes for an Original

Answer 5

1. Xerox copy
2. Certified copy of a public record
3. Summaries of voluminous records

Question 6

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if the mnemonic LOCS applies

Answer 6

Lost

• All the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith

Opponent

• The opponent has possession of the original and has refused to deliver it (even upon notice by the pleadings or by the court).

Collateral

• Where the writing, recording, or photograph is not closely related to a controlling issue, i.e., witness merely refers to a writing, but not to prove its contents

Subpoena

• The original cannot be obtained by any available judicial procedure