Writings Flashcards
What is the Best Evidence Rule?
To prove the terms of a writing (or document), the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.
Rule applies typically where (i) the writing is legally operative or dispositive instrument or (ii) knowledge of a witness concerning a fact results from having read it in the document.
When does the Best Evidence Rule not apply?
The Best Evidence Rule does not apply when:
(i) fact to be proved exists independently of the writing (can use oral testimony)
(ii) writing is collateral to litigated issue (minor importance)
(iii) summaries of voluminous records
(iv) public records (which are certified)
T/F: Handwritten copies are considered secondary evidence and are admissible only if the original or a duplicate (copy) are unavailable.
True.
When a witness has used a writing to refresh her memory on the stand, what rights does the adverse party have?
Whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to:
(i) have the writing produced at trial,
(ii) to inspect it, to cross-examine the witness thereon, and
(iii) to introduce it into evidence.
T/F: If a memo is used solely to refresh a witness’s memory, it is not introduced into evidence, is not hearsay, and does not need to fall within a hearsay exception.
True. The memo also does not need to be authenticated.
Whenever the question considers a writing, what issues should you be aware of?
You should be aware of:
- authentication
- best evidence rule
- hearsay
T/F: Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence.
True.
A bank executive was on trial for embezzling from the bank where he worked. A key witness for the prosecution was called to testify, but on the stand he had difficulty remembering the specifics of a conversation he had with the executive regarding the executive’s accounting procedures. To refresh the recollection of the witness, the prosecutor showed the witness a memorandum that the witness had written for his file, detailing the conversation. The witness reviewed the memorandum, and then testified that he recalled the conversation. He proceeded to testify about the specifics of the conversation. The defense counsel then asked that the memorandum be introduced into evidence.
How should the court rule on the memorandum?
The court should admit the evidence if it was used to refresh the witness’s recollection. Because the witness read the notes, and then had an independent recollection of events, this qualifies as a present recollection refreshed. Normally a writing used to refresh is not placed into evidence. But if a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence.
A boater and a water skier were involved in a boating accident. Shortly after the accident, the water skier prepared a written summary of the events surrounding the accident. At trial two years later, the water skier is on the stand and is unable to accurately recall the details of the accident, even after reviewing the aforementioned account of the accident.
Assuming a proper foundation is laid, may the summary of the accident be read into evidence?
The summary of the accident may be read into evidence. If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, an out-of-court memorandum or other record of the event made by the witness at a time when the witness’s memory of the event was fresh. The fact that the witness’s memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury, as here.
The plaintiff sued the defendant, alleging that the defendant allowed her dogs to roam onto the plaintiff’s land and cause significant damage to his landscaping. The defendant denied the allegations and called a witness to testify on her behalf. The witness testified on direct examination that she visited the defendant every day and that the defendant never allowed her dogs to leave the perimeter of her property. On cross-examination, the plaintiff’s counsel presented the witness with a letter written by the witness to a friend in which she expressed her dismay that the defendant allowed her dogs to roam throughout the neighborhood. The plaintiff’s counsel requests that the witness read the letter to herself prior to cross-examination. The defendant objects.
May the witness refer to the letter?
The witness may not refer to the letter. Generally, a memo can be used to refresh the recollection of a witness, to substitute for forgotten testimony, or on cross-examination. Here, the plaintiff’s counsel can use the letter to impeach the witness’s testimony because it is a prior inconsistent statement. To do so, he can cross-examine her as to the contents of the letter (as opposed to having her read it to herself prior to cross-examination, as he attempted to do) to show that she has made statements contrary to her testimony, thereby discrediting her testimony.
A plaintiff read of the success of a box-office hit movie about aardvarks in various entertainment journals. The movie was enormously popular among young children, and cartoon figures from the movie began appearing on T-shirts, soft drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but denied that the model had any substantial similarity to the now-famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it.
For the plaintiff to testify at trial as to the appearance of the model, which of the following is true?
A - plaintiff can testify as to the appearance of the model because he has personal knowledge of it.
B - plaintiff must show that the destruction of the model was not committed in bad faith.
C - plaintiff must introduce a photograph of the model, if one exists.
D - plaintiff must give advance notice to the opposing party that he plans to use such oral testimony in his case.
(A) plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model’s appearance.
*The best evidence rule covers writings and recordings, which are defined as “letters, words, numbers, or their equivalent, set down in any form.” A clay model clearly does not fit within that definition. (C) states an acceptable form of secondary evidence under the best evidence rule, which does not apply here. Under the Federal Rules, there are no degrees of secondary evidence. Therefore, this choice would be wrong even if the best evidence rule were applicable, because the plaintiff would not be limited to photographic evidence.
A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor’s alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor’s handwriting and recognizes the signature on the letter as being hers.
Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter?
C - Admit the letter as authentic and instruct the jury accordingly.
D - Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.
The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic.
Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder’s testimony that he is familiar with the neighbor’s handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide.
