CHAP 14 BEST EVIDENCE RULE Prof JANICKE 2016
CHAP. 14: BEST EVIDENCE RULE Prof. JANICKE 2016
APPLIES ONLY TO: • WRITINGS • PHOTOGRAPHS • RECORDINGS 2016 Chap. 14 -- Best Ev. Rule 2
FOR OTHER KINDS OF EVIDENCE: • THERE IS NO GENERAL RULE THAT A LAWYER MUST PUT FORTH THE “BEST, ” OR EVEN THE MOST RELIABLE, EVIDENCE 2016 Chap. 14 -- Best Ev. Rule 3
THE BEST EVIDENCE RULE: [RULES 1002 & 1003] • WHEN THE CONTENT OF A WRITING (OR PHOTO OR RECORDING) IS DRAWN INTO QUESTION, THE ORIGINAL OR A MECHANICAL COPY OF IT MUST BE INTRODUCED INTO EVIDENCE 2016 Chap. 14 -- Best Ev. Rule 4
WHAT VIOLATES THE BEST EVIDENCE RULE: • ** A WITNESS TELLING US WHAT THE DOCUMENT SAID, OR WHAT THE PHOTO SHOWED, OR WHAT THE RECORDING CONTAINED! 2016 Chap. 14 -- 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” >> 2016 Chap. 14 -- Best Ev. Rule 6
• “THE PICTURE CLEARLY SHOWED. . ” • “THE WHOLE THING WAS RECORDED ON TAPE, AND ON THE TAPE HE ADMITTED STEALING THE MONEY. ” • “I HAD AN EMAIL FROM HIM SAYING TO MEET AT THE OLD HOTEL” – EVERYTHING AFTER “SAYING” IS A VIOLATION OF THE BEST EVIDENCE RULE 2016 Chap. 14 -- Best Ev. Rule 7
EXAMPLES OF NO VIOLATION OF THE RULE • 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 2016 Chap. 14 -- Best Ev. Rule 8
• THE FACT THAT THE SAME FACTS COULD ALSO BE PROVED BY GETTING INTO THE CONTENTS OF A DOCUMENT IS NOT A BAR TO USE OF THIS TESTIMONY – EXAMPLE: WITNESS DESCRIBING BANK ROBBERY SCENE, WHEN IT IS ALSO ON VIDEO RECORDING – EXAMPLE: WITNESS TELLING ABOUT A TELEPHONE STOCK FRAUD, WHEN A TRANSCRIPT OF THE CALL EXISTS 2016 Chap. 14 -- Best Ev. Rule 9
• 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 2016 Chap. 14 -- Best Ev. Rule 10
EXEMPTIONS FROM THE B. E. RULE [RULE 1004] • WITNESS ALLOWED TO TESTIFY TO DOCUMENT’S CONTENTS WHERE: – DOCUMENT IS LOST OR DESTROYED, or – DOCUMENT NOT OBTAINABLE (WITHHELD BY DISTANT THIRD PARTY) or – DOCUMENT IN HANDS OF ADVERSE PARTY or – EV. IS ON A MINOR POINT 2016 Chap. 14 -- Best Ev. Rule 11
ONE FURTHER CLASS OF EXEMPTIONS [RULE 1007] • IN ALL CASES: – CAN PROVE THE CONTENTS BY TESTIMONY OF THE ADVERSE PARTY, OR BY HIS WRITTEN ADMISSION (e. g. , IN A LETTER) 2016 Chap. 14 -- Best Ev. Rule 12
PROBLEMS/CASES • 14 E • 14 F • Meyers 2016 Chap. 14 -- Best Ev. Rule 13
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