30 - "Best Evidence" Rule 1001-1008 Flashcards
Intro
- To prove the contents of a writing, the “best evidence” rule requires that the original be introduced in evidence unless an exception applies.
- The label “best evidence rule” is misleading - only applies only to writings, recordings, and photographs — and only when proving their contents. There is no general rule requiring the “best evidence.”
- A party generally is not required to introduce real evidence in order to prove its case. ex. A theft case can be proven without introducing the stolen property. A drug possession case can be prosecuted without admission of the drugs.
- Thus, a more apt description of the rule is the “original writing” rule.`
Even if the original document is produced, it may be inadmissible under some other rule of evidence — e.g., hearsay rule.4
Rationale
- The nature of writings gives rise to their special treatment. The manual copying of a writing is especially susceptible to the introduction of inaccuracies, and even a minor mistake may have significant legal consequences — for example, in wills, deeds, and contracts.
- Perhaps worst is the testimony of a witness who had read a document sometime in the past and attempts to recount at trial what she had read.5 Think of Bob Cratchit in Dickens’s A Christmas Carol or some medieval monk laboriously copying documents by hand. At the time the rule developed, this was the type of secondary evidence that was of concern. The prevention of mistransmissions underlies the rule.
Proving Contents
The rule applies only when a party attempts to prove the contents of a writing or recording. Typically, this occurs when (1) the event to be proved is a written transaction, (2) a party chooses a written method of proof, or (3) a witness’s knowledge is derived solely from having read a document.
Proving Contents - Written Events; Independent Events
- Some events and transactions, such as those involving wills, deeds, (most) contracts,9 and judgments, are written transactions, and the rule requires production of the original writing when a party seeks to prove their contents.
Independent events recorded - Rule 1002 does not apply when the event sought to be proved existed independently of a writing, even if that event has been recorded. This narrow scope of the rule is counter-intuitive.
- Ex if an accused makes an oral confession that is tape recorded or subsequently reduced to writing, the rule does not apply. The prosecution is not attempting to prove the contents of the recording or writing but rather the independent event (oral confession) that happened to have been recorded. - Other Exs - proof of the existence of a marriage, payment of a debt or a purchase, perjured testimony,11 conversations,12 as well as earnings in an account.13 Here, a writing may be used, but it is not required.
The trial court, however, has authority to require production of the writing or recording pursuant to Rule 611(a).14
Proving Contents - A. Written Method of Proof B. Knowledge Derived from a Writing C. Absence of a Writing D. Existence of a Writing E. Recordings
A. If a party chooses to introduce a writing to prove a fact, the original must be produced.15 Thus, in the confession hypothetical cited above, if the prosecutor chose to use the writing to prove the confession, she would have to offer the original writing.16
B. The rule also applies when a witness’s knowledge is derived solely from reading a document or viewing a photograph.17 The rule would therefore apply to a witness who had read the confession and testifies to the contents of the written confession.18 (As opposed to a witness who heard the oral confession and seeks to testify.) In one case, for example, testimony concerning recordings from a global positioning satellite (GPS), which was used to track a boat carrying drugs, was subject to the rule.19 Similarly, the rule applies to text messages.20
C. The federal drafters noted that the original writing rule does not apply “to testimony that books or records have been examined and found not to contain any reference to a designated matter.”21
D. The rule does not apply when witnesses merely refer to the existence of a writing22 or the date of a writing.23
E. The discussion in the preceding sections also applies to recordings. Recordings, however, raise an additional issue: whether the original writing rule applies to transcripts that are provided to jurors to aid in following tape recordings played at trial. The answer is no. The transcripts are merely a guide. The recording is the evidence and trumps the transcript if there is a conflict.24
Proving Contents - Photographs
- The original photograph is required to prove the contents of the photograph.25 In most cases, however, photographs are not offered to prove their contents.26 Photographs are typically admitted in evidence under what is known as the “pictorial testimony” theory of admissibility.
- A foundation for the admissibility of photographs is laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object depicted.27 Under this theory, the authenticating witness adopts the photograph as her own testimony. The original writing rule does not apply because the offering party is not attempting to prove the contents of a photograph but rather the scene depicted, an independent event.28
- Cases in which the proponent is trying to prove the contents of a picture ex. Copyright cases, defamation cases, and cases involving invasion of privacy by photograph, and Obscene pictures
- In addition, when the picture has independent value, such as the photograph of a bank robber by a surveillance camera or an X ray in a personal injury case, the rule also applies. These cases, which rely on the “silent witness” theory, involve attempts to prove the contents of the picture.30
Definition of
A. “Writing” and
B. “Original”
A. 1001(a) defines writings and recordings to include writings produced from modern photographic and computer systems.31 The term “writing” also encompasses artwork, engineering drawings, architectural designs,32 and a GPS display.33 In addition, inscribed chattels (e.g., tombstones) come within the definition of a writing, but, because of their nature, the trial court has more discretion in determining whether the original need be produced.34
B. “Originals” Defined Rule 1001(d) defines an original as the writing or recording itself or any “counterpart intended to have the same effect by a person who executed or issued it.” In other words, the rule employs an intent test to determine whether a writing is an original.
In most instances, what is an original will be self-evident. Note, however, that there may be more than one original.35 “A carbon copy of a contract executed in duplicate becomes an original, as does a sales ticket carbon copy given to a customer.”36 In addition, “what is an original for some purposes may be a duplicate for others. Thus, a bank’s microfilm record of checks cleared is the original as a record. However, a print offered as a copy of a check whose contents are in controversy is a duplicate.”37 If, for example, a defendant charged with submitting fraudulent expense vouchers used photocopies of expense receipts to support the reimbursement claim, the photocopies are the originals because they are the relevant documents — the ones submitted for reimbursement.38
Computer records - Rule 1001(d) contains a specific provision on computer-generated writings: “any printout — or other output readable by sight — if it accurately reflects the information.”39
Photographs - Rule 1001(d) provides that the original of a photograph “includes the negative or a print from it.”40 The federal drafters justified this definition by noting that, “[w]hile strictly speaking the original of a photograph might be thought to be only the negative, practicality and common usage require that any print from the negative be regarded as an original.”41
Exception — Duplicates: 1003 (“Xerox”™ Rule)
- Rule 1003, aka “Xerox”™ rule, makes duplicates generally admissible. This represents a major change from the common law, under which the offeror had the burden of establishing an adequate excuse for failing to produce the original before secondary evidence was admissible. Rule 1003 reverses this burden with respect to duplicates as defined in Rule 1001(e).
- Duplicates are typically as admissible as originals. If the principal concern of the best evidence rule is the reliability of secondary evidence, the accuracy of modern technology should be taken into account.42 Thus, duplicates are admissible unless (1) a genuine question of the authenticity of the original is raised, or (2) fairness requires production of the original.
Exception — Duplicates: 1003 (“Xerox”™ Rule) - “Duplicates” Defined
A. Not all copies qualify as “duplicates.” Rule 1001(e) defines a duplicate as a counterpart produced by a process that “accurately reproduces the original.” Thus, handwritten copies are not duplicates.43 Recall, however, if a counterpart, no matter how produced, is intended by the person executing or issuing it to have the same effect as the original, the counterpart is an original under Rule 1001(d). A counterpart, therefore, may be either an original or a duplicate, depending on the intent of the person executing or issuing it.44
Exception — Duplicates: 1003 (“Xerox”™ Rule) - Exceptions to Duplicate Rule
Authenticity questioned - Duplicates are not admissible if there is a genuine question about the authenticity of the original — for example, when it is “barely legible”45 or otherwise suspect.46
Unfairness - Fairness is jeopardized “when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party.”47 The federal note cites two cases. In one case, the Fourth Circuit held it error to admit an incomplete photocopy of the check in a prosecution for theft of a Social Security check.48 In the other, the Second Circuit ruled it proper to exclude photocopies of portions of business records in a civil fraud case when the originals were in Japan and the defendant had no opportunity to determine whether omitted portions might be relevant.49 Exclusion of a photocopy is also proper where “the most critical part of the original . . . is not completely reproduced in the ‘duplicate.’”50
Procedural issues - A party seeking to exclude a “duplicate” under Rule 1003 has the burden of demonstrating that the duplicate should not be admitted. This issue is entrusted to the discretion of the judge.51
Exceptions - A. Original Lost or Destroyed 1004(a) B. Original Not Obtainable 1004(b) C. Original in Opponent's Possession: FRE 1004(c) D. “Collateral Matters”: FRE 1004(d)
A. Secondary evidence is admissible if the originals are lost or destroyed, provided the offering party has acted in good faith.52 The trial court determines whether the proponent has established loss or destruction and the absence of bad faith under Rule 104(a).53 The test is subjective — mere negligence is not bad faith.54 It is not uncommon for businesses to implement document destruction policies in order to avoid being swamped with paper.55 This exception is also frequently used with electronic evidence due to the myriad of ways that electronic records may be deleted, lost, or purged.56 If secondary evidence is admitted, an adverse inference instruction may be appropriate in some cases.
B. If an original cannot be obtained by any available judicial process or procedure, secondary evidence is admissible.58 The territorial limits of a subpoena duces tecum in civil cases is 100 miles, while it is nationwide in criminal cases.
C. Secondary evidence is admissible if the opposing party fails to produce the original at trial, despite having been put on notice (while the original was under her control) that it would be subject to proof at trial. “A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original.”60 Notice may occur by the pleadings or otherwise. A different provision, Rule 1007, governs admissions by an opposing party.
- Discovery - Rule 1004(c) is not a discovery rule.61 If a party in a civil case wants the original produced, it should be sought through discovery.62
D. If the document is not important, the rule doesn’t apply. Documents are often referred to during trials, and it would be disruptive and time-consuming to apply the best evidence rule every time a witness alludes to a writing.63 As enacted, the rule used the phrase “collateral matters.” The 2011 restyled rule refers to items “not closely related to a controlling issue.”64 While collateral matters are “difficult to define with precision, . . . situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant’s advertisement”65 and “the streetcar transfer of plaintiff claiming status as a passenger.”66
Exceptions -
E. Public Records: FRE 1005
F. Summaries: FRE 1006
G. Opponent Admission: FRE 1007
E. Once again, public records get favorable treatment.67 Rule 1005 provides for the admissibility of copies of official records and recorded documents, thus recognizing an automatic dispensation from the requirements of the original writing rule. “Public records call for somewhat different treatment. Removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian.”68 The trade-off is that only a specific class of secondary evidence is admissible — certified copies.69 Note that “the mere fact that a document is kept in a working file of a governmental agency does not automatically qualify it as a public record.”
F. In some cases, there are simply too many records. Rule 1006 permits them to be presented in the form of a “chart, summary, or calculation.”71 The summary itself may be presented as a tangible exhibit or through the testimony of a witness. The underlying materials that are summarized, however, must be a writing, recording, or photograph. The rule does not encompass a summary of verbal statements.72 The summary must also be distinguished from the originals. For example, printouts of a business ledger kept on computer are the actual records, not summaries; Rule 803(6), the hearsay exception for business records, controls, not Rule 1006.73
- “Voluminous” requirement - While the writings that are summarized must be voluminous, convenience (not necessity) is the standard in this context.
- Right of inspection - Rule 1006 explicitly provides that the underlying materials must be made available for inspection and copying by the other parties.75 Inspection is only possible with advance notice.76 Consequently, discovery procedures and pretrial hearings are important.
- Production of originals. Rule 1006 explicitly authorizes the trial judge to order in-court production of the originals or duplicates, a decision left to the judge’s discretion.77
- Admissibility of underlying documents - Although not explicitly stated in the rule, a summary is not admissible if the originals upon which it is based are inadmissible.78 In other words, Rule 1006 is not an exception to the hearsay rule.
Accuracy requirement - Although not explicitly required by the rule, a summary must “fairly represent and be taken from” the originals.79 In one case, a summary of medical articles was ruled inadmissible because the expert who prepared the summary had not read all the articles.80 In another case, summaries of figures were excluded because “there was virtually no documentation.”
- Experts - The use of summaries often requires expert testimony (e.g., an accountant), in which case the expert must be qualified.82 Expert testimony, however, is not always required.83
- Summaries as pedagogic devices - The use of summaries as evidence must be distinguished from the use of summaries and charts as pedagogical devices. A summary admitted under Rule 1006 is itself evidence and should go to the jury room along with other exhibits.84 Charts and other visual aids that merely summarize or organize testimony are not themselves evidence and should not be sent to the jury room.
G. Where the party against whom the writing is offered admits the contents, the original need not be produced. Rule 1007 is limited to written or transcribed admissions; oral admissions do not qualify.86 Oral admissions, however, may be admissible pursuant to another exception to the original document rule.87
Function of Judge and Jury - 1008
Under most circumstances, the trial court decides preliminary questions concerning the applicability of the original writing rule pursuant to Rule 104(a). The judge decides whether a writing is an original or a duplicate and whether a party is attempting to prove the contents of a writing or recording. The court also decides the applicability of the exceptions.88 The offering party has the burden of establishing admissibility by a preponderance of evidence.89
However, there are three circumstances where the jury plays an expanded role:
1) when there is a question whether a writing ever existed;
2) when another writing is claimed to be the original;
3) when the issue is whether other evidence correctly reflects the contents of the original.
This represents a specialized application of Rule 104(b) on conditional relevancy.91 The court determines only whether evidence sufficient to support a finding by a reasonable jury has been admitted (prima facie standard).
The third circumstance, allocating to the jury the responsibility of determining whether secondary evidence correctly reflects the contents of the original, does not apply until the court has excused nonproduction of the original.92
Degrees of Secondary Evidence
Some of the exceptions to the original writing rule specify what type of secondary evidence is admissible. Under Rule 1003, “duplicates” have a precise meaning.93 Under Rule 1005, only certified copies of public records are admissible. By its own terms, Rule 1006 is limited to summaries.
Other exceptions differ. If any of the conditions specified in Rule 1004 are satisfied, the rule does not prescribe the type of secondary evidence that must be produced.94 For example, if an original is lost, secondary evidence in the form of a copy or in the form of a witness’s testimony is permitted. The copy is not preferred on the theory that attorneys, for the most part, will proffer the most persuasive proof and thus there is no need for further regulation.95
