Pg 45 Flashcards
What is the exception to the best evidence rule for an opponent, while on notice, failing to produce documents in his control?
The party that the original should be offered against had control of the original, was put on notice through pleadings or otherwise that the original is the subject of proof at trial or hearing, and fails to produce it for the trial or hearing
If a defendant kept a signed contract, then the plaintiff sought it in discovery, but the defendant wouldn’t produce it, under the best evidence rule is the plaintiff allowed to say what the contract said?
Yes because the exception for the opponent, while being on notice, and failing to produce the document in his control would apply
If the P testifies that the D tore up the original contract after the suit was filed, so he wants to orally testify about the contents of the contract, would that be OK under the best evidence rule?
Yes, because the D was the party in possession of it and he refused to produce the originals after being put on notice, so the exception to the best evidence rule applies
What is involved in the exception to the best evidence rule for a writing, recording, or photo that is not closely related to a controlling issue?
You don’t need an original for these because they are just collateral matters. They are relevant, but not important enough to insist that the original gets produced
If a defendant and plaintiff signed a contract over lunch, and the P testifies that the defendant gave a bad tip to the waitress, so the plaintiff didn’t think she could trust him, would it be necessary for the contract to be introduced under the best evidence rule?
No, because the plaintiff is testifying about the lunch bill, not the contents of the contract. That is just a collateral matter that is not closely related to a controlling issue, so the exception to the best evidence rule for that would apply
What is involved in the exception to the best evidence rule for “under oath testimony, deposition, or written statement of a party against whom evidence is offered“?
The proponent can prove the content of a writing/recording/photo by the testimony/deposition/written statement of the party the evidence is offered against. If the opposing side made a party-opponent admission about the contents of the writing, they are admissible if:
– they were made under oath at a deposition or through testimony, or
– they were made in writing, even if not under oath
How does CA and the FRE differ in relation to exceptions to the best evidence rule?
California doesn’t have a best evidence rule, it only has a secondary evidence rule that does not allow oral testimony, it just allows written secondary evidence.
On cross of the defendant, if the attorney asks if the defendant and the plaintiff signed a contract saying the defendant would mow the plaintiff’s lawn, and the defendant says yes, is that OK under the best evidence rule?
Yes even though no writing is offered because this is oral testimony under oath, and the plaintiff is using the admission against the defendant. So the under-oath exception applies.
If a plaintiff sues a D for breach of contract, and at trial the plaintiff testifies that the defendant admitted the agreement required him to pay rent on the first of each month, would that be admissible under the best evidence rule?
No, because no exception would apply since this admission wasn’t under oath or in writing. If the defendant had written a note that said he knew his lease required him to pay rent by the first of every month, that admission could be used against him
What is involved in the exception to the best evidence rule for summaries of voluminous documents?
These can be offered in lieu of the document themselves, but the originals have to be made available on request for examination and/or copying. Proponent can use a summary, chart, or calculation to prove the content of voluminous writings/records/photos that can’t be conveniently examined in court.
Is it possible to use a graph to show the daily sales receipts for a period of two years indicating a sharp decline in sales instead of offering hundreds of receipts under the best evidence rule?
Yes, under the exception for summaries of voluminous documents
What’s involved in the rule of completeness?
If a party introduces all or part of a writing/recorded statement, an adverse party can require the introduction, at the same time, of any other part, or any other writing or recorded statement that in fairness ought to be considered at the same time since it would be misleading or unfair not to admit all of it
If a plaintiff sues a D for breach, and at trial the defendant offers a printout of a text from the plaintiff that says, “I know that trying to get a jury to find you liable would be a waste of time.“ Is it possible for the plaintiff to request that the text sent immediately afterward be admitted as well if it says, “because we both know you’re liable, but you’ll hide your assets so I can’t collect on a judgment.“?
Yes, because the defendant admitted the first text without the second, and it gave a misleading impression that the plaintiff admitted to a weak case when he really just said that the defendant was dishonest. This would be allowed in under the rule of completeness
The rule of completeness only applies to what?
Writings, it does not apply to oral conversations
If a D testifies to something the plaintiff said orally, but there’s another closely related statement that the plaintiff said and the defendant left out, does the rule of completeness apply to allow that statement to come in?
No, because the rule of completeness only applies to writings and not to oral conversations. The only recourse would be that on the cross examination of the defendant, the plaintiff could ask about the other statements, or the plaintiff could testify on his own behalf on ebuttal about the second statement
