Contents of Writings/Recordings/Photographs Flashcards
Original Document Rule/Best Evidence Rule (Rule 1002)
To prove the content of a writing, recording, or photograph the original writing, recording, or photograph is required except as otherwise provided by these rules or act of congress
Purpose: Reduce risk of fraud, forgery, or mistake
Covers every tangible process to record words, pictures or sounds
This includes letters, words, and numbers (e.g., fax, email, Xerox copy, carbon copy, videotape, CD/DVD/MP3, X-rays).
The “Best Evidence Rule” applies only where:
Contents are in issue
-Legally operative documents: Where the writing has independent legal significance (i.e., the writing itself creates or destroys a legal relationship).
-Document-dependent testimony:
Where the testimony is reliant on the writing not on personal knowledge, then document must be produced
Best Evidence Rule not applicable: Independent Source Rule
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.
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. E.g., witness may testify, “I remember paying the bill,” but may not testify, “My records show I paid the bill,” unless the receipt is produced.
If you are trying to prove that a film is obscene,
the film is the subject matter. It must be seen before the issue can be determined.
Whether the terms of the contract said X or Y…
The actual language of the contract is at issue. The party must produce the contract.
Image from a surveillance camera from a bank…
In order to tie identification of the thief to the camera, it must become a part of the case.
Plagiarism:
Must produce the original document and the document as copied.
Malpractice:
If a doctor misread an X-ray, we must see the X-ray.
An original includes
either the original itself or a duplicate.
There are three substitutes for an original:
(1) Xerox Duplicate
(2) Certified Copy of a public records
(3) Summary of voluminous records
A duplicate is admissible…
to the same extent as an original unless there is a genuine question of authenticity.
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if the mnemonic LOCS applies.
L: Lost - All the originals have been lost or destroyed, unless the proponent lost or destroyed them in “bad faith.”
O: Opponent
The opponent has possession of the original and has refused to deliver it (even upon notice by the pleadings or by the court).
C: Collateral (Not an issue)
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.
S: Subpoena
The original cannot be obtained by any available judicial procedure.
The contents of an official record may be proved by
copy, certified as correct in accordance with Rule 902, or by witness testimony upon comparison with the original.
Summaries (Rule 1006)
The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.
The originals shall be made available for examination, copying, or both by other parties at a reasonable time and place. The court may also order production in court.
Foundation
a. Admissible Hearsay
b. Opponent is given reasonable pretrial access
c. Authentication
Finder of fact (usually the jury) decides:
a. whether the asserted writing (the original) ever existed;
b. whether another writing produced at trial is the original;
c. the accuracy of the writing; and
d. the jury has the final decision on whether the item is genuine and how much weight to give it.
