CHAP. 14: BEST EVIDENCE RULE P. JANICKE 2006

APPLIES ONLY TO: WRITINGS PHOTOGRAPHS RECORDINGS 2006 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 2006 Chap. 14 -- Best Ev. Rule

BEST EVIDENCE RULE [RULES 1002 & 1003] THE CONTENT OF A WRITING (OR PHOTO OR RECORDING) CAN BE PROVED ONLY BY PUTTING THE ORIGINAL OR A MECHANICAL COPY INTO EVIDENCE NO WITNESS TELLING US WHAT IT SAID! 2006 Chap. 14 -- Best Ev. Rule

EXAMPLES OF BREACH OF THE RULE WITNESS TESTIFYING: “MY LEASE PERMITTED PETS” WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS” 2006 Chap. 14 -- Best Ev. Rule

“THE PICTURE CLEARLY SHOWED . . . .” “THE WHOLE THING WAS RECORDED ON TAPE, AND HE ADMITTED STEALING.” 2ND HALF NOT ADMISSIBLE IF WIT. IS RECITING WHAT’S ON THE TAPE “I HAD AN EMAIL FROM HIM SAYING TO MEET AT THE OLD HOTEL” EVERYTHING AFTER “EMAIL” IS A VIOLATION 2006 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 2006 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 2006 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) 2006 Chap. 14 -- Best Ev. Rule