Writings

Question 1

What is the best evidence rule?

Answer 1

• Where the contents of a document are in issue, the original of the document is required—no testimony as to contents UNLESS the original is excused

Question 2

What is the purpose of the best evidence rule?

Answer 2

• The purpose is to reduce the risk of fraud, forgery, or mistake.
• The Best Evidence Rule is broadly defined as it covers every tangible process to record words, pictures, and sounds.

Question 3

When does the best evidence rule apply?

Answer 3

• The Best Evidence Rule applies ONLY where the contents of a writing are in issue. Two main situations:
  o Legally operative documents
  o Document-dependent testimony

Question 4

What is a legally operative document?

Answer 4

• Legally operative documents: Where the writing has independent legal significance (i.e., the writing itself creates or destroys a legal relationship).
• Examples:
  o a contract;
  o a will;
  o a deed;
  o a mortgage;
  o a lease;
  o a driver’s license;
  o a movie in an obscenity action;
  o a photograph in a pornography action;
  o written libel; or
  o a divorce decree.

Question 5

What is document-dependent testimony?

Answer 5

• Document-dependent testimony is where the testimony is reliant on the writing, not on personal knowledge.

Question 6

What are some examples of the best evidence rule at work?

Answer 6

• EXAMPLE: A victim is found shot to death. The victim wrote, “My best friend threatened to kill me today” in a diary that police found during the investigation. The officer who found it may testify as to finding the diary but may NOT testify as to its contents. The Best Evidence Rule requires the diary.
• EXAMPLE: A doctor testifies, “The x-ray of the plaintiff’s lungs shows distention characteristic of emphysema.” The doctor has no personal knowledge independent of the x-ray. The Best Evidence Rule applies, and the x-ray must be provided.
• EXAMPLE: A parent goes to the store with their teenager and sees how much the teenager paid for a baseball glove. Although there is a receipt, the Best Evidence Rule does not require the receipt because the parent has firsthand knowledge of the purchase.

Question 7

When is the best evidence rule not applicable?

Answer 7

• Independent source rule: Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the Best Evidence Rule does not apply.

Question 8

What are some examples in which the best evidence rule does not apply because a fact to be proved has a source independent from the writing?

Answer 8

• Sales receipt - not required to prove goods or services were paid for.
• Birth certificate - not required to prove the fact or date of birth.
• Death certificate.
• Marriage certificate.

Question 9

What is an exception to the independent source rule?

Answer 9

• If, however, the receipt or certificate is offered as evidence to prove a birth, death, sale, etc., then the original must be produced, absent good cause. For example, a witness may testify, “I remember paying the bill,” but may not testify, “My records show I paid the bill,” unless the receipt is produced.

Question 10

Do duplicates violate the best evidence rule?

Answer 10

• Admissibility of duplicates (Rule 1003): A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity.

Question 11

What would be three viable substitutes for an original document under the best evidence rule?

Answer 11

• There are three substitutes for an original:
  o duplicate (photocopy);
  o certified copy of a public record (FRE 803(8)); and
  o summaries of voluminous records (FRE 1006).

Question 12

When would other evidence of content—other than the original—be allowed?

Answer 12

• The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if the mnemonic CLOTS applies:
  o Collateral
  o Lost
  o Opponent
  o Testimony
  o Subpoena

Question 13

What is the collateral exception to the best evidence rule?

Answer 13

• Where the writing, recording, or photograph is not closely related to a controlling issue (i.e., the witness merely refers to a writing, but not to prove its contents).

Question 14

What is the lost exception to the best evidence rule?

Answer 14

• All the originals have been lost or destroyed unless the proponent lost or destroyed them in bad faith.

Question 15

What is the opponent exception to the best evidence rule?

Answer 15

• The opponent has possession of the original and has refused to deliver it (even upon notice by the pleadings or by the court).

Question 16

What is the testimony exception to the best evidence rule?

Answer 16

• Testimony or admission by opponent

Question 17

What is the subpoena exception to the best evidence rule?

Answer 17

• The original cannot be obtained by any available judicial procedure.

Question 18

Are summaries of voluminous writings admissible?

Answer 18

• The contents of voluminous writings, recordings, or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.

Question 19

What is required in order for summaries to be admissible?

Answer 19

• The originals shall be made available for examination, copying, or both by other parties at a reasonable time and place. The court may also order production in court.
• There must be a showing that the originals themselves would be admissible hearsay (substantive evidence), under either an exception or exclusion.
• The opponent must be given reasonable pretrial access.
• Authentication: Summaries must be properly authenticated by the preparer.

Question 20

When would the testimony or admission of a party be enough to authenticate the contents of a writing?

Answer 20

• Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the non-production of the original writing because (usually) it is not in their possession.

Question 21

What must the finder of fact (usually the jury) decide about writings?

Answer 21

• Finder of fact (usually the jury) decides:
  o whether the asserted writing (the original) ever existed;
  o whether another writing produced at trial is the original;
  o the accuracy of the writing; and
  o the jury has the final decision on whether the item is genuine and how much weight to give it.

Question 22

What is the analysis for writings?

Answer 22

• O: Original writing rule = Best Evidence Rule (Rule 1002).
• P: Privilege - is the document privileged (Rule 501)?
• R: Relevancy - Rules 401-403
• A: Authentication - is the writing genuine (Rules 901-902)?
• H: Hearsay - do any hearsay problems exist (Rules 801-805)?