III. BEST EVIDENCE RULE

Question 1

A. General Principles

Answer 1

1. BER = “original writings” rule.
2. BER = In order to prove the contents of a writing, recording, or photograph, an original must be produced.
3. Key Inquiries
   What does it mean “to prove the contents” of a writing To what evidence does BER apply?
   What is an “original?”
   What are the exceptions to the BER?

Question 2

definition

Answer 2

Definition: A party who seeks to prove the contents of a writing (includes sound recordings, X-rays, films), must either produce the original writing or provide an acceptable excuse for its absence. If court finds excuse is acceptable, the party may then use secondary evidence—oral testimony or a copy.

Question 3

B. When best evidence rule applies:

Two principal situations:

Answer 3

B. When best evidence rule applies: When a party is seeking to prove the contents of a writing.

Two principal situations:

1. The writing is a legally operative document, i.e., the writing itself creates rights and obligations. Examples: patent, deed, mortgage, divorce decree, written contract.
2. Witness is testifying to facts that she learned solely from reading about them in a writing.

Question 4

C. What qualifies as the “original writing”?

Answer 4

1. the writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out.
2. duplicate—any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy). Rule on duplicates: duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.
3. handwritten copy is neither an original nor duplicate

Question 5

D. Excuses for non-production of original

Answer 5

1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process

Court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy)

Question 6

E. “Escapes”

Answer 6

1. __voluminous record__ can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of __public records___
3. collateral documents

If court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence.