Evidence Flashcards
Define “writing”
A writing consists of letters, words, numbers, or their equivalent set down in any form.
Define “recording”
A recording consists of letters, words, numbers, or their equivalent recorded in any manner.
Define “photograph”
A photograph means a photographic image or its equivalent stored in any form.
Define “original”
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.
Define “duplicate”
A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
What is the Best Evidence Rule?
An original writing, recording, or photograph is required in order to prove its content unless the FRE or a federal statute provides otherwise. The Best Evidence Rule applies only where the contents of a writing are at issue. For example: (1) when a witness without personal knowledge introduces the contents of a document into evidence as proof of what it says; (2) in situations where the content of a writing directly affects legal rights that are at issue in the case; and, (3) if the witness’s testimony is reliant on the writing (the testimony is derived from the writing itself, not from personal knowledge). NOTE: The underlying writing itself is usually hearsay, and will be inadmissible unless it comes within an exception.
When does the Best Evidence Rule Apply?
The Best Evidence Rule applies only where the contents of a writing are at issue. For example: (1) when a witness without personal knowledge introduces the contents of a document into evidence as proof of what it says; (2) in situations where the content of a writing directly affects legal rights that are at issue in the case; and, (3) if the witness’s testimony is reliant on the writing (the testimony is derived from the writing itself, not from personal knowledge).
When does the Best Evidence Rule NOT apply?
Situations in which the Best Evidence Rule do not apply include: (1) where first-hand testimony, rather than the record of the event, is used to prove the content of the record; and (2) physical objects, unless the item can easily be brought into court and the exact wording is necessary to the cause.
What is the rule regarding the admissibility of duplicates?
A duplicate is admissible to the same extent as the original UNLESS: (1) a genuine question is raised about the original’s authenticity; or (2) the circumstances make it unfair to admit the duplicate.
NOTE: Under COMMON LAW, photocopies (unless made in compliance with the business records exception) were not treated as originals.
NOTE: The FEDERAL RULES do not include a document hand-copied from an original as a duplicate.
When is the original piece of evidence NOT required?
An original is not required, and other evidence of the content of a writing, recording, or photograph is admissible IF:
(1) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(2) an original cannot be obtained by any available judicial process;
(3) the party against whom the original would be offered:
(a) had control of the original;
(b) was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and
(c) fails to produce it at the trial or hearing; or
(4) the writing, recording, or photograph is not closely related to a controlling issue.
Where the original is unavailable under this rule, the Federal Rules allow any form of secondary evidence (even oral testimony).
How may public records be used as evidence?
In using a copy of a public record to prove content, the proponent may do so provided the following conditions are met:
- the record or document is otherwise admissible; and
- the copy is certifiec as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.
If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
Are summaries of documents admissible for their content?
Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.
The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. Additionally, the court may order the proponent to produce them in court.
May a party’s testimony or statment be used to prove the content of a piece of evidence?
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. The proponent need not account for the original.
How does the court and jury function with regard to the admission of writings, recordings, or other documents?
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph.
However, in a jury trial, the jury determines – in accorance with Rule 104(b) regarding preliminary questions – any issue about whether:
- an asserted writing, recording, or photograph ever existed;
- another one produced at trial or hearing is the original; or
- other evidence of content accurately reflects the content.
What is the rule regarding authenticating or identifying evidence?
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must procure evidence sufficient to support a finding that the item is what the proponent claims it is.
