CHAP. 14: BEST EVIDENCE RULE Prof. JANICKE 2011

Chap Best Ev. Rule2 APPLIES ONLY TO: WRITINGS PHOTOGRAPHS RECORDINGS

2011Chap Best Ev. Rule3 THERE IS NO GENERAL RULE THAT IN ALL INSTANCES A LAWYER MUST PUT FORTH THE “BEST” EVIDENCE COUNSEL USUALLY HAVE MANY CHOICES

2011Chap Best Ev. Rule4 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!

2011Chap Best Ev. Rule5 EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE WITNESS TESTIFYING: “MY LEASE PERMITTED PETS” WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS”

2011Chap Best Ev. Rule6 “THE PICTURE CLEARLY SHOWED....” “THE WHOLE THING WAS RECORDED ON TAPE, AND ON THE TAPE HE ADMITTED STEALING.” “I HAD AN FROM HIM SAYING TO MEET AT THE OLD HOTEL” –EVERYTHING AFTER “ ” IS A VIOLATION OF THE BEST EVIDENCE RULE

2011Chap Best Ev. Rule7 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

2011Chap Best Ev. Rule8 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

2011Chap Best Ev. Rule9 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

2011Chap Best Ev. Rule10 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)