1. CHAP. 14: BEST EVIDENCE RULE
Prof. JANICKE
2012

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

3. 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 Best Ev. Rule

4. 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 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”
2012
Chap 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 FROM HIM SAYING TO MEET AT THE OLD HOTEL”
EVERYTHING AFTER “ ” IS A VIOLATION OF THE BEST EVIDENCE RULE
2012
Chap Best Ev. Rule

7. 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 Best Ev. Rule

8. 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 Best Ev. Rule

9. 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 Best Ev. Rule

10. 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 Best Ev. Rule

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