CHAP. 14: BEST EVIDENCE RULE

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CHAP. 14BEST EVIDENCE RULE

• Prof. JANICKE
• 2012

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APPLIES ONLY TO

• WRITINGS
• PHOTOGRAPHS
• RECORDINGS

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• THERE IS NO GENERAL RULE THAT IN ALL INSTANCES A
  LAWYER MUST PUT FORTH THE BEST EVIDENCE
• COUNSEL USUALLY HAVE MANY CHOICES

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BEST EVIDENCE RULERULES 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!

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EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE

• WITNESS TESTIFYING MY LEASE PERMITTED PETS
• WITNESS TESTIFYING MY DIPLOMA SAYS BACHELOR OF
  ARTS

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• 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

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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

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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

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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

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ONE FURTHER CLASS OF EXEMPTIONSRULE 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)

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PROBLEMS/CASES

• 14A
• Duffy
• 14E
• 14F
• Meyers
• Exercise 11