CHAP. 14: BEST EVIDENCE RULE Prof. JANICKE 2012

APPLIES ONLY TO: WRITINGS PHOTOGRAPHS RECORDINGS 2012 Chap. 14 -- Best Ev. Rule

COUNSEL USUALLY HAVE MANY CHOICES THERE IS NO GENERAL RULE THAT IN ALL INSTANCES A LAWYER MUST PUT FORTH THE “BEST” EVIDENCE COUNSEL USUALLY HAVE MANY CHOICES 2012 Chap. 14 -- Best Ev. Rule

BEST EVIDENCE RULE [RULES 1002 & 1003] IF COUNSEL IS SEEKING TO PROVE THE CONTENT OF A WRITING (OR PHOTO OR RECORDING), THE ORIGINAL OR A MECHANICAL COPY OF IT MUST BE INTRODUCED INTO EVIDENCE ** NO WITNESS TELLING US WHAT IT SAID! 2012 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” 2012 Chap. 14 -- Best Ev. Rule

“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 2012 Chap. 14 -- Best Ev. Rule

EXAMPLES OF NO BREACH 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 2012 Chap. 14 -- Best Ev. Rule

TESTIMONY ON THE FACTS, WHEN THERE IS A RECORD 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 2012 Chap. 14 -- Best Ev. Rule

EXEMPTIONS FROM THE B.E. RULE [RULE 1004] WITNESS ALLOWED TO TESTIFY TO CONTENTS WHERE: DOCUMENT IS LOST OR DESTROYED DOCUMENT NOT OBTAINABLE (WITHHELD BY DISTANT THIRD PARTY) DOCUMENT IN HANDS OF ADVERSE PARTY EV. IS ON A MINOR POINT 2012 Chap. 14 -- Best Ev. Rule

ONE FURTHER CLASS OF EXEMPTIONS [RULE 1007] IN ALL INSTANCES: CAN PROVE THE CONTENTS BY DEPOSITION OR TRIAL TESTIMONY OF THE ADVERSE PARTY, OR BY HIS WRITTEN ADMISSION (E.G., IN A LETTER) 2012 Chap. 14 -- Best Ev. Rule

PROBLEMS/CASES 14A Duffy 14E 14F Meyers Exercise #11 2012 Chap. 14 -- Best Ev. Rule