CHAP. 14:BEST EVIDENCE RULE

Prof. JANICKE

2014

2014 Chap. 14 -- Best Ev. Rule 2

APPLIES ONLY TO:

• WRITINGS

• PHOTOGRAPHS

• RECORDINGS

2014 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

2014 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!

2014 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”

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2014 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

2014 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

• THE FACT THAT THE SAME FACTS COULD ALSO 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

2014 Chap. 14 -- Best Ev. Rule 8

2014 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

2014 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

2014 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)

PROBLEMS/CASES

• 14E

• 14F

• Meyers

2014 Chap. 14 -- Best Ev. Rule 12