1. CHAP. 14: BEST EVIDENCE RULE
Prof. JANICKE
2019

2. APPLIES ONLY TO: WRITINGS PHOTOGRAPHS RECORDINGS 2019
Chap Best Ev. Rule

3. FOR OTHER KINDS OF EVIDENCE:
THERE IS NO GENERAL RULE THAT A LAWYER MUST PUT FORTH THE “BEST,” OR EVEN THE MOST RELIABLE, EVIDENCE
2019
Chap Best Ev. Rule

4. 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
2019
Chap Best Ev. Rule

5. WHAT VIOLATES THE BEST EVIDENCE RULE:
** A WITNESS TELLING US WHAT THE DOCUMENT SAID, OR WHAT THE PHOTO SHOWED, OR WHAT THE RECORDING CONTAINED!
2019
Chap Best Ev. Rule

6. EXAMPLES OF BREACH OF THE BEST EVIDENCE RULE
WITNESS TESTIFYING: “MY LEASE PERMITTED PETS”
WITNESS TESTIFYING: “MY DIPLOMA SAYS BACHELOR OF ARTS”
>>
2019
Chap Best Ev. Rule

7. “THE PICTURE CLEARLY SHOWED . . . .”
“THE WHOLE THING WAS RECORDED ON TAPE, AND ON THE TAPE HE ADMITTED STEALING THE MONEY.”
“I HAD AN FROM HIM SAYING TO MEET AT THE OLD HOTEL”
EVERYTHING AFTER “SAYING” IS A VIOLATION OF THE BEST EVIDENCE RULE
2019
Chap Best Ev. Rule

8. 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
2019
Chap Best Ev. Rule

9. 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
2019
Chap Best Ev. Rule

10. THE TESTIMONY MAY BE OBJECTIONABLE ON OTHER GROUNDS:
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
2019
Chap Best Ev. Rule

11. 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
2019
Chap Best Ev. Rule

12. 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)
2019
Chap Best Ev. Rule

13. PROBLEMS/CASES
14E
14F
Meyers
2019
Chap Best Ev. Rule