Best Evidence Doctrine

Question 1

What is the Best Evidence Doctrine, generally?

Answer 1

If you want to talk about the contents of the writing, you have to bring the writing to court.

This could be called the original doc/recording rule.

Question 2

What 4 things fall under the best evidence doctrine?

Answer 2

1. writings
2. photographs
3. video recordings
4. audio recordings

Question 3

Do inscribed chattels count as “writings” under the best evidence doctrine?

Answer 3

It is up to the judge as to whether it is a chattel or a writing. In Duffy the writing “Duf”, so the court held that it didn’t count.

Question 4

Can judges override the best evidence doctrine?

Answer 4

Yes!

Question 5

When is it mose likely for an inscribed chatted to be considered a writing?

Answer 5

If the writing has a full sentence/subtantial writing

Question 6

Does original mean it is the first iteration of that thing?

Answer 6

No! It is any counterpart intended to be just as good as the first one.

Question 7

What does “original” mean in the context of electronically stored information?

Answer 7

Any printout or other output if it accurately reflects the information

Question 8

Can a negative of a photo count as an original?

Answer 8

Yes!

Question 9

Can a print from a photo count as an “original?”

Answer 9

Yes!

Question 10

Can duplicates come in?

Answer 10

Yes! As long as there is no tampering.

Question 11

When should you avoid applying the best evidence doctrine?

Answer 11

Avoid applying the doctrine to anything that is not a writing, photo, or recording!

Question 12

What is the best evidence when a witness who has firsthand knowledge about something they observed but also incidentally wrote something down regarding that observation?

Answer 12

That does not preclude admission of the witness testimony. The document is the best evidence of what is actually in the document, but the witness testimony is the best evidence of what the witness saw.

Question 13

Question BREAK!!
Two examples of incidental recordings

Answer 13

1. A doctor can testify that they saw a bone sticking out of their patient’s limb even if they took notes about it. BUT if the doctor testifies, “I wrote down that the bone was sticking out,” now that implicates the best evidene doctrine and we NEED those notes in court.
2. An undercover agent who hears a conversation may testify to its substance even though he made a recording while the supsect was speaking.

Question 14

What does the best evidence doctrine say about the contents of a statement at issue vs. the contents of a writing at issue?

Answer 14

The best evidence doctrine says that the contents of a writing must be proved by the writing itself when the writing is at issue.

BUT, if the writing is merely a reflection or incidental recording of a statement that was also witnessed firsthand, the contents of the writing are not at issue - it is the contents of the statement that are at issue, and this can be proved with witness testimony or with that incidental recording

Question 15

What are the facts of the Meyers case?

Answer 15

1. D was being tried for perjury
2. Prosecutor brought in senate committee member who heard D’s perjerious statement
3. D objected, saying this was bizarre because the prosecution should’ve used the transcript from the testimony

Question 16

What was the holding in the Meyers case?

Answer 16

Best evidence doctrine doesn’t apply because the contents of the transcript are not at issue because the witness testified about what he hear, not about what was in the transcript.

You can successfully exclude this by saying under 403, you can’t bring in a bunch of evidence on something you have already established.

Question 17

What are 2 grounds to deny admission of duplicates?

Answer 17

1. there is a question of authenticity OR
2. it is unfair to admit the duplicate

Question 18

When can you admit reproductions of photos, cassette tapes and video tapes?

Answer 18

If they are shown to be reliable

Question 19

Is the Best Evidence Doctrine prejudiced against duplicates?

Answer 19

NOPE

Question 20

What if the original is unavailable?

Answer 20

If we have a good reason not to have the original, it is okay to accept the next best alternative.

Question 21

What is an example of using the next best alternative if the original is not available?

Answer 21

While documents are better evidence that witness testimony when trying to determine the content of the documents, if the documents are no longer available, then witness testimony may be the only means of proving the content of the documents, and in that case, the witness testimony is the best evidence.

Question 22

What are 4 circumstances in which wew will waive the best evidence doctrine?

Answer 22

1. Original is lost or destroyed through no fault of the proponent (flood, fire, etc.)
2. Original could not be obtained
3. Opponent has the original and refuses to make it available (privilege, wrongdoing, etc.)
4. The writing photo, or recording speaks to a collateral/immaterial matter

Question 23

Are copies of public records sufficient?

Answer 23

Yes!

Question 24

Are descriptions of publc records sufficient?

Answer 24

Yes! If you cannot get a copy, a description is OKAY

Question 25

Can you bring in a summary of voluminous records in lieu of the actual records?

Answer 25

Yes!

Question 26

What are 3 requirements to bring in a summary of voluminous records in lieu of the records

Answer 26

1. Original is available to adverse party and summarizer 2. Summary is admissible 3. Summary must be authenticated

Question 27

Do APOs trump the best evidence doctrine?

Answer 27

YUP! We do not need original for APOs of ANY KIND

Question 28

Why don't we need originals of APOs of any kind?

Answer 28

Since the party opponent has their own attorney, we know they'll fight it if the proponent gets the statement wrong

Question 29

What is the role of the judge and jury with respect to the Best Evidence Doctrine?

Answer 29

Major factual questions related to the best evidence doctrine witll be presented to the **jury** the **judge** determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photo

Question 30

In a jury trial, what 3 things does the jury determine re evidentiary determination? ## Footnote weird question. sorry

Answer 30

A jury determines whether: 1. an asserted writing, recording, or photo ever existed 2. another one produced at the trial or hearing is the original OR 3. other evidence of content accurately reflects the content