Pg 44

Question 1

What are the major steps involved in writing a hearsay essay?

Answer 1

– is it hearsay or non-hearsay?
– Exceptions?
- Confrontation clause?

Question 2

What is the best evidence rule?

Answer 2

An original writing, recording, or photo is required to prove its content unless otherwise provided.

The document or recording is the “best evidence” of its contents compared to someone’s paraphrase or recollection of what they think the document or recording said.

Question 3

What is the rationale behind the best evidence rule?

Answer 3

If the exact wording or content of a document or recording is important to a case, the fact finder should see the actual document or recording. The court doesn’t want people orally testifying about what they think a document said, they want the actual document in evidence

Question 4

What is the time that the best evidence rule is implicated?

Answer 4

Only if you are trying to prove a writing’s/recording’s contents

Question 5

What does California have instead of the best evidence rule?

Answer 5

The secondary evidence rule. This freely allows secondary evidence with many limitations that restrict it in the same way that the best evidence rule does, except that it allows written secondary evidence most of the time. I.e.: handwritten notes of what the contract said instead of the actual contract

Question 6

What is the threshold question for the best evidence rule?

Answer 6

Is the plaintiff trying to prove the contents of a writing or recording? Then is he offering the writing or recording into evidence?

Question 7

Before you can discuss the contents of a writing or recording, what has to happen in court?

Answer 7

The writing or recording must be offered/moved into evidence. Until that happens, you can’t discuss the contents of a document.

Question 8

When is the best evidence rule often implicated?

Answer 8

When a party doesn’t offer an exhibit into evidence. For example if someone is giving oral testimony about a writing or recording, it is important to spot that the party should be offering the document or recording instead

The best evidence rule is only implicated when a party is trying to prove the contents of a writing.

Question 9

If someone has personal knowledge of an event and incidentally there was a writing about it, is it permissible to ask that person what happened without needing the document to be in evidence under the best evidence rule?

Answer 9

Yes, but if their only knowledge of the event comes from the writing, or they dispute what the writing says, then the attorney is actually trying to prove the content of the writing and thus it must be offered into evidence

Question 10

If a plaintiff sues a defendant because at a meeting the defendant voted to fire him for improper reasons, and the plaintiff called a witness and asked if the witness was present at the meeting, and the witnesses said he was. Then the plaintiff asked if minutes were taken, and the witness says yes. If the attorney asks what was decided at the meeting, can the witness answer without violating the best evidence rule?

Answer 10

Yes, he can answer because he has personal knowledge of what happened at the meeting, regardless of the minutes that were taken. There’s no need to prove the contents of the written minutes because instead the attorney is trying to prove the contents of the witness’ mind.

Question 11

If a W was present at a meeting and asked on the stand what was decided at the meeting, and the witness said “I don’t remember, but when I reviewed the minutes of the meeting, we decided to fire the plaintiff.“ Would that be allowed as testimony under the best evidence rule?

Answer 11

No, because the witness has no basis in personal knowledge to testify about what happened, so he is just testifying to the contents of the minutes. If that is the case, then the best evidence rule requires that the writing be moved into evidence

Question 12

If a witness saw an accident and took pictures of the scene, if he is later asked on the stand to describe the accident, would the best evidence rule require that the pictures be moved into evidence?

Answer 12

No, because he has personal knowledge of what happened, so he can testify about that

Question 13

What should you watch out for regarding the best evidence rule?

Answer 13

Always check the wording because even if a witness has personal knowledge, if he is asked about the content of a document or recording, that violates the best evidence rule unless the item was admitted into evidence

Question 14

What are some examples of writings that would be included in the best evidence rule?

Answer 14

Letters, words, numbers, or their equivalent set down in any form. It doesn’t have to be on paper, it can be a carving or symbols

Question 15

What are some examples of recordings under the best evidence rule?

Answer 15

Letters, words, numbers, or their equivalent recorded in any manner. This usually means audio or video recording

Question 16

What is included as a photograph under the best evidence rule?

Answer 16

An image or its equivalent stored in any form

Question 17

What is included as an original under the best evidence rule?

Answer 17

The writing or recording and any counterpart intended to have the same effect by the person that executed or issued it

Question 18

What is included as an original electronically stored piece of information?

Answer 18

Printouts or other outputs readable by sight if they accurately reflect the information

Question 19

What are considered to be original photos for the best evidence rule?

Answer 19

Negatives or print form of pictures

Question 20

What are some examples of an original writing or recording under the best evidence rule?

Answer 20

Print from a film negative, one of three contracts signed in triplicate, printout of a computerized spreadsheet

Question 21

What is considered to be a duplicate under the best evidence rule?

Answer 21

Counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original

Question 22

If you print out two copies of a contract and the parties sign both copies, are they both considered to be originals?

Answer 22

Yes

Question 23

A photocopy of a contract is considered to be what for the best evidence rule?

Answer 23

A duplicate

Question 24

Are duplicates admissible under the best evidence rule?

Answer 24

Yes because they are usually a near perfect replica of the contents of the original and they accurately depict the original’s contents. They are admissible to the same extent as an original unless there’s a genuine question about the original’s authenticity or the circumstances make it unfair to admit a duplicate

Question 25

What is a situation that it would be unfair to admit a duplicate under the best evidence rule?

Answer 25

If the original is a colour map and the duplicate is black and white, and it showed which states were Republican and which were Democrat by the colors. It would be necessary to produce the original or a coloured duplicate in that case

Question 26

If there are two copies of a contract printed out and signed, then a photocopy is made, at trial if the plaintiff tries to offer the copy into evidence to prove the contents of the contract, would that be OK under the best evidence rule?

Answer 26

Yes, it would likely be admissible as an original unless there’s a question about authenticity or unfairness. Duplicates are allowed unless there is an issue with them

Question 27

How are x-rays and doctor’s reports treated under the best evidence rule?

Answer 27

Doctor’s reports are sometimes based in part on an x-ray. If you are trying to prove the contents of an x-ray, but not offering the x-ray, and only offering the report, then you are not offering the best evidence. If the report is proving the contents of the x-ray, then the report is secondary evidence of the x-ray.

Extra points counter argument: the x-ray is just one of the things the doctor relied on. X-ray is part of an exam process, so if a report reflects the doctor’s impressions as part of an overall exam of the patient and the x-ray is just one thing considered, then the report is not secondary evidence of primary evidence (which is the X-ray itself) but is itself a recordation of the exam and the impressions derived from it, so you can get around a best evidence rule problem by providing this counter-argument that ultimately the best evidence rule is not violated

Question 28

What are the exceptions to the best evidence rule?

Answer 28

– all originals are lost or destroyed
– the original cannot be gotten through any judicial process
– the opponent, while on notice, fails to produce the document in his control
– writing, recording, or photo is not closely related to a controlling issue
– under oath testimony, deposition, or written statement of a party against whom evidence is offered
– summaries of voluminous documents

Question 29

If an original is not available under the best evidence rule, and there’s a good explanation for it, what will the court usually do?

Answer 29

Allow other evidence of its contents as necessary. The original then is not required and other evidence is admissible under an exception

Question 30

What is involved in the exception to the best evidence rule for all originals being lost or destroyed?

Answer 30

This is an exception as long as the proponent wasn’t the one that lost or destroyed the originals by acting in bad faith.

Question 31

If a contract is destroyed in a hurricane, can a party to the contract testify about what the contract said instead of offering the contract into evidence under the best evidence rule?

Answer 31

Yes, under the exception to the best evidence rule for all originals being lost or destroyed

Question 32

If a defendant said he couldn’t produce the contract because he shredded it, but he wants to talk about its contents, would the best evidence rule allow that?

Answer 32

No, because under the exception to the best evidence rule that allows for a substitute if all the originals are lost or destroyed, the caveat is that the proponent cannot have been the reason they were lost or destroyed by acting in bad faith. Here if the defendant shredded the contract, he is the reason it was destroyed

Question 33

If two copies of the contract were printed and signed, and the plaintiff testified that one was destroyed, so he tries to orally testify about its contents, would that be allowed as an exception to the best evidence rule?

Answer 33

No, because all of the originals were not lost or destroyed

Question 34

If there was a warranty agreement, but when a plaintiff brought suit, the corporation ripped up the warranty. Under the best evidence rule would the plaintiff be allowed to testify about the terms of the warranty?

Answer 34

Yes, the plaintiff would be allowed to testify about its terms, but the corporation wouldn’t be able to because they were the reason that the original was destroyed

Question 35

What is involved in the exception to the best evidence rule for when the original cannot be gotten through any judicial process?

Answer 35

If documents or recordings are out of the country, it depends on the particular procedures of that country whether they can be subpoenaed. So it’s not always feasible to get documents in time for trial. if the original is in another country, especially one that doesn’t follow similar legal traditions, secondary evidence of it is available. For example if an attorney kept a client’s contract and then moved to Kazakhstan and can no longer be reached, the client would be able to testify about what the contact said because he couldn’t get the document through judicial process

Question 36

Would the exception under the best evidence rule that an original can’t be gotten through any judicial process apply if the original was held in another state?

Answer 36

No, because every state in the US is subject to subpoena power, so the original could be gotten