Documentary Evidence: Best Evidence Rule

Question 1

In general, what is the “best evidence rule”?

What is it called in CA? Are there distinctions?

Answer 1

In GENERAL –>

1. To prove the TERMS of a WRITING, the ORIGINAL writing must be produced IF the terms are MATERIAL
2. Secondary evidence of the writing (ie.. oral testimony) is INADMISSIBLE unless original is unavailable

IN CA –> called the “secondary evidence rule”

• Basically the same.
• Prop 8 does not apply to this rule

Question 2

With regards to the “best evidence rule,” what counts as a “writing”?

Answer 2

“writing” includes writing, recording, photograph, x-ray etc

Question 3

With regards to the “best evidence rule,” what counts as a “original”?

What counts as “duplicate”?

Answer 3

“original” = writing itself or any copy intended by person executing it to have same effect

“duplicate” = EXACT copy (such as a photocopy) made by mechanical means
DOES NOT INCLUDE –> handwritten copy

Question 4

When is a duplicate admissible under best evidence rule?

What is the CA distinction?

Answer 4

A “duplicate” is admissible UNLESS:

1. authenticity of original is challenged; OR
2. unfairness would ensue

CA distinction –> duplicates and other evidence of contents, including handwritten notes ARE admissible

Question 5

When does the “best evidence rule” not apply (4) ?

Answer 5

The best evidence rule DOES NOT apply in the following circumstances:

1. Fact is not material (ie..collateral);
2. Fact to be proved exists INDEPENDENTLY OF WRITING
   EXAMPLE –> if writing summarized non-written transaction, oral testimony is allowed without giving original of the event
3. summaries of voluminous records
   RESULT –> proponent MAY present in form of chart/summary
4. Copies of public records that are:
   (i) certified as correct; or
   (ii) testified to as correct

Question 6

If best evidence rule DOES apply, what is the rule re: admissibility of secondary evidence of contents?

Answer 6

IF proponent CANNOT produce the original writing (or duplicate) in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) IF:
- a “Satisfactory explanation” is given

BUT SEE –> special exception for testimony/deposition/written admission of party

Question 7

If best evidence rule DOES apply, and proponent seeks to produce secondary evidence of contents, what constitutes a “satisfactory explanation” for why the original/duplicate can’t be produced?

Answer 7

1. LOSS or DESTRUCTION of the original
2. original is in POSSESSION of a 3rd party OUTSIDE the jdxn, and is UNOBTAINABLE
3. original is in POSSESSION of adverse party who, after due notice, has failed to produce it

Question 8

If best evidence rule DOES apply, what is the rule re: testimony, deposition, or written admission of the party against whom it’s offered

Answer 8

A proponent MAY prove the contents of a writing, recording or photograph through:

• the testimony, deposition, or written admission of a party

IN THIS CASE –> he NEED NOT account for non production of the original

Question 9

With regards to an original, duplicates, other copies and secondary evidence of contents of a writing - what is the role for the judge?

what is the role for the jury?

Answer 9

Judge –> determines admissibility of duplicates, other copies, and oral testimony as to contents of a writing

Jury –> determines

1. whether original ever existed
2. whether writing, recording, or photo IS the original
3. whether evidence offered CORRECTLY reflects the original