CHAP 14 BEST EVIDENCE RULE Prof JANICKE 2011

CHAP. 14: BEST EVIDENCE RULE Prof. JANICKE 2011 Chap. 14 -- Best Ev. Rule

APPLIES ONLY TO: • WRITINGS • PHOTOGRAPHS • RECORDINGS 2011 Chap. 14 -- Best Ev. Rule 2

• THERE IS NO GENERAL RULE THAT IN ALL INSTANCES A LAWYER MUST PUT FORTH THE “BEST” EVIDENCE • COUNSEL USUALLY HAVE MANY CHOICES 2011 Chap. 14 -- Best Ev. Rule 3

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! 2011 Chap. 14 -- Best Ev. Rule 4

EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE • WITNESS TESTIFYING: “MY LEASE PERMITTED PETS” • WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS” 2011 Chap. 14 -- Best Ev. Rule 5

• “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 2011 Chap. 14 -- Best Ev. Rule 6

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 2011 Chap. 14 -- Best Ev. Rule 7

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 2011 Chap. 14 -- Best Ev. Rule 8

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 2011 Chap. 14 -- Best Ev. Rule 9

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) 2011 Chap. 14 -- Best Ev. Rule 10