CHAP. 14: BEST EVIDENCE RULE

1. CHAP. 14:BEST EVIDENCE RULE Prof. JANICKE 2014

2. APPLIES ONLY TO: • WRITINGS • PHOTOGRAPHS • RECORDINGS Chap. 14 -- Best Ev. Rule

3. THERE IS NO GENERAL RULE THAT A LAWYER MUST PUT FORTH THE “BEST” OR MOST RELIABLE EVIDENCE • THE RULE APPLIES ONLY TO DOCUMENTS, PHOTOS (incl. FILMS, VIDEOS), and RECORDINGS Chap. 14 -- Best Ev. Rule

4. STATING THE BEST EVIDENCE RULE:[RULES 1002 & 1003] • WHEN THE CONTENTS OF A WRITING (OR PHOTO OR RECORDING) ARE DRAWN INTO QUESTION, THE ORIGINAL OR A MECHANICAL COPY OF IT MUST BE INTRODUCED INTO EVIDENCE • ** NOT A WITNESS TELLING US WHAT IT SAID! Chap. 14 -- Best Ev. Rule

5. EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE • WITNESS TESTIFYING: “MY LEASE PERMITTED PETS” • WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS” >> Chap. 14 -- Best Ev. Rule

6. “THE PICTURE CLEARLY SHOWED . . . .” • “THE WHOLE THING WAS RECORDED ON TAPE, AND ON THE TAPE HE ADMITTED STEALING.” • “I HAD AN EMAIL FROM HIM SAYING TO MEET AT THE OLD HOTEL” • EVERYTHING AFTER “EMAIL” IS A VIOLATION OF THE BEST EVIDENCE RULE Chap. 14 -- Best Ev. Rule

7. EXAMPLES OF NO VIOLATION OF THE RULE • WITNESS TESTIFYING: “I SIGNED A LEASE” • WITNESS TESTIFYING: “I MAJORED IN LIBERAL ARTS” • IN BOTH CASES, THE WITNESS IS TELLING EVENTS, NOT TELLING THE CONTENT OF A DOCUMENT Chap. 14 -- Best Ev. Rule

8. THE FACT THAT THE SAME FACTS COULDALSO BE PROVED BY GETTING INTO THE CONTENTS OF A DOCUMENT IS NOT A BAR TO USE OF TESTIMONY • EXAMPLE: WITNESS DESCRIBING BANK ROBBERY SCENE, WHEN IT IS ALSO ON VIDEO RECORDING • EXAMPLE: WITNESS TELLING ABOUT A TELEPHONE STOCK FRAUD, WHEN A TRANSCRIPT OF THE CALL EXISTS Chap. 14 -- Best Ev. Rule

9. THE B.E.R. DOES NOT APPLY TO TESTIMONY ABOUT FACTS OR EVENTS, AS LONG AS THE WITNESS DOES NOT SAY WHAT IS IN THE WRITING OR PHOTO OR RECORDING • THE TESTIMONY MAY BE OBJECTIONABLE ON OTHER GROUNDS: • LACK OF INDEPENDENT RECOLLECTION • LACK OF FIRST-HAND KNOWLEDGE Chap. 14 -- Best Ev. Rule

10. EXEMPTIONS FROM THE B.E. RULE [RULE 1004] • WITNESS ALLOWED TO TESTIFY TO DOCUMENT’S CONTENTS WHERE: • DOCUMENT IS LOST OR DESTROYED, or • DOCUMENT NOT OBTAINABLE (WITHHELD BY DISTANT THIRD PARTY) or • DOCUMENT IN HANDS OF ADVERSE PARTY or • EV. IS ON A MINOR POINT Chap. 14 -- Best Ev. Rule

11. ONE FURTHER CLASS OF EXEMPTIONS[RULE 1007] • IN ALL CASES: • CAN PROVE THE CONTENTS BY TESTIMONY OF THE ADVERSE PARTY, OR BY HIS WRITTEN ADMISSION (e.g., IN A LETTER) Chap. 14 -- Best Ev. Rule

12. PROBLEMS/CASES • 14E • 14F • Meyers Chap. 14 -- Best Ev. Rule