CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Question 1

To prove the content of a writing, recording, or photograph?

Answer 1

The original is required unless an exception applies

• purpose is to reduce fraud
• covers every instrument used to capture statements

Question 2

The Best Evidence Rule applies ONLY where:

2

Answer 2

the contents of a writing are an issue in the case

1. Legally operative documents: Where the writing has independent legal significance
2. Document-dependent testimony: the only reason the witness knows this is because they saw/heard what was captured (if independently known, does not apply)

Question 3

When is best evidence rule not applicable

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 and the Best Evidence Rule does not apply.

Question 4

What is the “original: for the purposes of the best evidence rule?
(4)

Answer 4

1. Original
2. A Xerox Copy
3. Certified Copy of a Public Record
4. Summaries of Voluminous records

-Unless there is a genuine question of authenticity

Question 5

If best evidence rule applies,

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

Answer 5

LOCS

1. Lost (≠bad faith)
2. Opponent has possession of
3. Collateral use of document
4. Subpeona cannot obtain it

Question 6

Summaries Best Evidence Rule

3

Answer 6

a. A showing that the originals themselves would be admissible hearsay (substantive evidence!), under either an exception or exclusion.
b. The opponent must be given a chance to examine it
c. Authentication: Summaries must be properly authenticated by the preparer