WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Question 1

Best evidence general rule

Answer 1

• The Best Evidence is considered the
  original

Question 2

does the best ev rule apply to objects?

Answer 2

NO, the BER does NOT apply to objects

Question 3

Exception to the BER?

Answer 3

• If the original item is lost or destroyed, you may use a copy if it is authenticated

Question 4

Authentic def:

Answer 4

• Authentic means no evidence of tampering
• Start with the premise that the document is authentic quia the fact pattern will provide evidence that some sort of tampering was involved

Question 5

Best Evidence Rule Applies in Two Scenarios:

Answer 5

1) To prove the contents of the thing being offered (must be whole)
OR
2) To prove the testimony being given (ie: the testimony is based on the contents of the evidence) UNLESS if other ev. can prove testimony (The facts will tell you if other evidence is available to prove the testimony)

Question 6

when does the BER not apply?

Answer 6

when the testifying witness is testifying about what they heard ‘live’ and the document/recording/tape is merely additional to their live testimony, (ie: the witness is not using the document/recording/tape as the source of their testimony)

ex: agent overheard a convo between D and Co-conspiratior regarding the incoming shipment of a large quantity of cocaine. That convo was also audiotaped, though critical portions are inaudible. D objects to the testimony of the agent on the grounds that it is not the best evidence of the conversation. Is the testimony admissible? - YES! Quia the agent witnessed what he is testifying about LIVE, the recording was merely incidental to his live witnessing, not the source of his testimony, and therefore the BER does not apply at all

Question 7

Completeness Rule

Answer 7

• When admitting a portion of a writing, recording, or photo, the whole document may be admitted for fairness