CHAP. 14: BEST EVIDENCE RULE Prof. JANICKE 2018

APPLIES ONLY TO: WRITINGS PHOTOGRAPHS RECORDINGS 2018 Chap. 14 -- Best Ev. Rule

FOR OTHER KINDS OF EVIDENCE: THERE IS NO GENERAL RULE THAT A LAWYER MUST PUT FORTH THE “BEST,” OR EVEN THE MOST RELIABLE, EVIDENCE 2018 Chap. 14 -- Best Ev. Rule

THE BEST EVIDENCE RULE: [RULES 1002 & 1003] WHEN THE CONTENT OF A WRITING (OR PHOTO OR RECORDING) IS DRAWN INTO QUESTION, THE ORIGINAL OR A MECHANICAL COPY OF IT MUST BE INTRODUCED INTO EVIDENCE 2018 Chap. 14 -- Best Ev. Rule

WHAT VIOLATES THE BEST EVIDENCE RULE: ** A WITNESS TELLING US WHAT THE DOCUMENT SAID, OR WHAT THE PHOTO SHOWED, OR WHAT THE RECORDING CONTAINED! 2018 Chap. 14 -- Best Ev. Rule

EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE WITNESS TESTIFYING: “MY LEASE PERMITTED PETS” WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS” >> 2018 Chap. 14 -- Best Ev. Rule

“THE PICTURE CLEARLY SHOWED . . . .” “THE WHOLE THING WAS RECORDED ON TAPE, AND ON THE TAPE HE ADMITTED STEALING THE MONEY.” “I HAD AN EMAIL FROM HIM SAYING TO MEET AT THE OLD HOTEL” EVERYTHING AFTER “SAYING” IS A VIOLATION OF THE BEST EVIDENCE RULE 2018 Chap. 14 -- Best Ev. Rule

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 2018 Chap. 14 -- Best Ev. Rule

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 THIS 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 2018 Chap. 14 -- Best Ev. Rule

THE TESTIMONY MAY BE OBJECTIONABLE ON OTHER GROUNDS: 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 2018 Chap. 14 -- Best Ev. Rule

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 2018 Chap. 14 -- Best Ev. Rule

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) 2018 Chap. 14 -- Best Ev. Rule

PROBLEMS/CASES 14E 14F Meyers 2018 Chap. 14 -- Best Ev. Rule