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Evidence
University of California, Hastings School of Law
Spencer, Mai Linh

 
Evidence Spencer Fall 2015
 
 
Best Evidence Rule
 
 
FRE 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the ORIGINAL writing, recording, or photograph IS REQUIRED, except as otherwise provided in these rules or by Act of Congress.
 
 
I.            Definition of “writing, recording, or photograph”
 
 
Rule 1001. Definitions
For purposes of this article the following definitions are applicable:
 
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
 
(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
 
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.
 
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.
 
 
 
II.            The concept of proving “content of a writing”
III.            The definition of “original” and “duplicate”
IV.            Proof of “collateral” matters
V.            Material in possession of the opposite party
VI.            Computer printouts, compilations, secondary evidence
VII.            The division of function between the judge and jury.
 
 
HYPOS
 
1.      Officer Obie searched Bloggins' house and seized (1) a tape recorded message on Bloggins' answering machine which said, “Bloggins, do you have any more marijuana you can sell me?” (2) a ledger containing the handwritten notation, “1 baggie of pot to Fred–$20,” and (3) a home video of Bloggins in his back yard next to what is obviously a marijuana plant. To which, if any, of these does the rule apply?
a.       All three. FRE 1001(1) defines “writing” to include “electronic recording” (the tape), “handwriting” (the ledger), and “photographing” [photographs include video tapes – FRE 1001(2)].
2.      To prove the contents of the serial number on an allegedly counterfeit $20 bill, the witness offers to testify that the serial number on the bill was B 34506170 A. Is the witness proving the contents of a writing?
a.       Yes. A writing “consists of letters, words, or  numbers, or their equivalent, set down by handwriting,  typewriting, printing, photostating, photographing, magnetic  impulse, mechanical or electronic recording, or other form of  data compilation.” FRE 1001(1). The serial number  constitutes “numbers” set down by “printing,” so it is  clearly a writing.
3.      While making repairs to the Tower of London, workers found the skeleton of young Edward V imprisoned in a secret, stone chamber. Prior to his death, he had scratched on one of the stones, “Richard III killed me.” In the prosecution of Richard III, the prosecution asks the workman who read and removed the stone to testify to this inscription. Is this stone a writing?
a.       Yes. The definition of writing is very broad, including “handwriting . . . mechanical . . . or other form of data compilation.” FRE 1001(1). The rule may not recognize books in running brooks, but sermons in stone would qualify as writings.
4.      Plaintiff contends that his drawings of Randy Rodent were appropriated by defendant, Disney, to create Mickey Mouse. Plaintiff offers to describe and sketch Randy Rodent for the jury. Disney objects, arguing that the original sketches must be produced because they are “writings” within the meaning of the rule. Should the trial judge agree with Disney?
a.       Yes. The original drawings are a writing because FRE 1001(1) defines a writing to include “letters, words, . . . or their equivalent.” If a picture is worth a thousand words, then a picture is the equivalent of words. In addition, FRE 1002 specifically includes still photographs, X-rays, and motions pictures. Since each is a picture or series of pictures, there is a very strong analogy to paintings and drawings. In Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), cert. den., 484 U.S. 826, plaintiff contended that Lucasfilm had copied the Imperial Walkers (“The Empire Strikes Back”) from plaintiff's earlier drawings. The court held that the original drawings were “writings,” and, therefore, governed by the best evidence rule.
b.      What if P had contended Disney had copied P’s statue of Randy Rodent. Is that statute a “writing” within the meaning of the BER?
                                                  i.      No. Certainly sculpture, like painting, has expressive content–in fact, many artists (like Michelangelo and Degas) did or do both. Thus, a sculpture may also be worth a number of words. There is no longer, however, the strong analogy to FRE 1001(2) which specifically includes “photographs, X-ray films, video tapes, and motion pictures.” Note that these are all pictures. If a sculpture, because of its expressive content, were a writing, then almost any human creation would also be a writing–cars, washing machines, furniture, lawn mowers, etc. All have creative, esthetic, expressive, components.
                                                ii.      What if P had argued that Disney had never seen the statue of Randy Rodent, but, instead copied a photograph of plaintiff's statue which had appeared in an art magazine? If plaintiff sought to describe the photo, and Disney argued that the photo was a “writing,” should the judge agree with Disney?
1.      Yes. The photo of the statue is a writing under FRE 1001(2). It makes no difference that the photograph is of something which, itself, is or is not a writing. Photographs of trees, intersections, people, etc., are all writings.
c.       Assume plaintiff produces drawings which he contends are the originals. Disney contends that no originals ever existed, so plaintiff's drawings are frauds. Plaintiff argues that the jury should decide this dispute. Disney argues that it is a question for the judge. Should the judge decide this dispute?
                                                  i.      No. This is a question for the trier of fact (jury, if there is one). Disney's claim that the proffered drawings are frauds is merely an assertion that the original never existed. FRE 1008 provides that when “an issue is raised whether (1) an asserted writing ever existed, or (2) another writing, recording, or photograph produced at the trial is the original . . . the issue is for the trier of fact . . . .”
d.      Assume that originals of Randy Rodent once existed, but they were destroyed in an accidental fire. Plaintiff offers a sketch of Randy Rodent (looking very much like Mickey Mouse), and Disney objects that plaintiff's sketch does not accurately reflect plaintiff's original drawings. Should the judge decide this dispute?
                                                  i.      No. Again, this is a question for the jury. As in the previous case, the drafters of the rules believed that it would be too great of an incursion on the right to jury trial if this question were decided by the judge alone. Thus, FRE 1008 provides that “when an issue is raised whether . . . (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact . . . .” Let's try one more variation.
e.       Plaintiff contends the original drawings of Randy Rodent were destroyed in an accidental fire. Disney objects to secondary evidence of their contents, contending that plaintiff fraudulently destroyed the originals to frustrate comparison. Should the judge decide this issue?
                                                  i.      Yes. Since the admissibility of plaintiff's secondary evidence of contents turns on the fulfillment of a condition of fact (whether plaintiff destroyed the originals in bad faith–FRE 1004(1), the issue is now one for the judge, not the jury. FRE 1008. Thus, issues relating to content or the existence of the originals are for the trier of fact, but issues on which admissibility of secondary evidence may turn are for the judge. It may seem odd that the issue of fraudulent destruction is for the judge, while the issue of fraudulent content is for the jury, but this was the result reached in Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), cert. denied 484 U.S. 826.
5.      In the movie “Presumed Innocent,” the prosecution failed to produce the beer glass from the murder scene on which the fingerprints of the defendant, Harrison Ford, had been found. When the prosecution's expert offered to testify that his comparison of the prints on the missing glass showed that they had been made by the defendant, the defendant argued that the testimony must be excluded. Is the prosecution attempting to prove the contents of a “writing” (the print on the glass)?
a.       No. Writings and recordings, the only things to which the rule applies, consist of “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” FRE 1001(1). A fingerprint left at the scene fits none of these. Note that records made by the expert about his observations may well be writings, but the question does not present any issue with respect to them.
6.      Immediately following the collision, plaintiff photographed the intersection. Plaintiff offers to describe the intersection from memory, but defendant objects to the testimony on the grounds that the photograph is required under the best evidence rule. How should the judge rule on the objection?
a.       The judge should OVERRULE the objection. Even though the photograph may be better evidence, it is not required by the “best evidence” rule unless the party is proving its contents. Here plaintiff is testifying to her recollection of the intersection, not to her knowledge of the contents of the photograph. Even though it may be more persuasive for her to introduce the photograph, the photograph is not required under the rule.
b.      Would your answer change if plaintiff offered to testify, “I know there was a tree obscuring the stop sign, because I saw it in the photo I took following the accident.” Should the judge now sustain defendant's objection based on the best evidence rule?
                                                  i.      Yes. The judge should SUSTAIN the objection because the photograph is a writing (FRE 1001(1),(2)) and plaintiff is now proving its contents by testifying to what she saw in the photograph. While she may describe the intersection from memory, once she chooses to use the contents of the photograph to prove her case, the best evidence rule requires her to produce the original (unless she has a valid excuse why she cannot).
7.      During questioning by Officer Obie at the police station, Bloggins states, “I confess. I did it and I'm glad.” Unknown to Bloggins, this statement was contemporaneously recorded on video tape. Officer Obie offers to testify to what he heard Bloggins say, and Bloggins objects that the video tape is required under the best evidence rule. How should the judge rule?
a.       The judge should OVERRULE the objection. Even though the video tape may be better evidence than Officer Obi

nts over 3 years.” Under the best evidence rule, the “original” is the document fed into the fax by defendant rather than the document printed out on plaintiff's side : T/F/ Maybe?
a.       Maybe. You must consult substantive contract law to resolve this question. Recall that the party choosing the method of transmission usually assumes the risk of mistransmission. If this rule applies to the present contract, then the operative offer would be the document printed out on plaintiff's side. That document, then, would be the “original.”
15.  Plaintiff was injured on a bus. Plaintiff offers to testify that he boarded the bus, paid his fare, and was given a ticket. Defendant objects, arguing that the best evidence rule requires production of the ticket. Should the judge sustain the objection?
a.       No. Even if plaintiff's testimony were construed as offering the contents of the ticket, the ticket itself is not “closely related to a controlling issue” in the case. Consequently, it is a collateral matter, and FRE 1004 does not require the production of the original.
16.  Plaintiff sues defendant for libel, contending that defendant showed a third party a defamatory draft of an article about plaintiff. Defendant still has possession of the draft. Plaintiff calls the third party to testify to the contents of the draft. Defendant objects, arguing that plaintiff must produce the original draft. How should the judge rule?
a.       The judge should OVERRULE the objection because the Defendant has possession and was put on notice the draft would be the subject of proof. FRE 1004(3) provides that the original is not required if it is under control of the party, and the party was put on notice “by the pleadings or otherwise, that the contents would be a subject of proof at the hearing . . .” The pleadings would put defendant on notice that the contents of the draft would be the subject of proof.
17.  The telephone company sues defendant for his bill. The company calls a secretary who testifies, “This is a computer printout of defendant's bill.” Defendant raises a best evidence objection. How should the judge rule?
a.       The judge's best response is to SUSTAIN the objection because the witness has presented no information to support a finding that the printout “reflects the data accurately.” The proponent need not present a programmer, but should present a witness who can describe how information is processed through the computer and used in the business. The best evidence rule applies to information stored in computers (FRE 1001(1)), but as a practical matter a disk or tape is not usable by the trier of fact. FRE 1001(3), therefore, provides that, “if data are stored in a computer or similar device, any printout readable by sight, shown to reflect the data accurately, is an 'original'.”
18.  The United States prosecutes Acme Honey Bucket, Inc. for toxic discharge into a public waterway. Acme offers charts summarizing their thousands of pages of discharge records. The charts indicate that Acme is innocent. Acme refuses to produce the original documents. The U.S. objects to the charts. How should the judge rule?
a.       The judge should SUSTAIN the objection. The charts are being used to prove the contents of the records, which are writings. Often, however, it is impractical or impossible to present voluminous records in court, so FRE 1006 permits the use of summaries. The proponent, however, must make the originals available for copying “by other parties at reasonable time and place.” Acme has failed to comply with this condition of admissibility.
19.  Bloggins murdered Mrs. Palsgraf, wrote a suicide note admitting the murder, then killed himself. In a wrongful death action against Bloggins' estate, Mr. Palsgraf offers to testify to the contents of the note. The original note has been lost without fault, but prior to its loss Mr. Palsgraf made (1) a hand written copy, (2) a photocopy, and (3) a written summary of its contents. Which, if any, of these must be produced before Mr. Palsgraf's oral testimony will be permitted?
a.       None of these need be produced. The Federal version of the best evidence rule requires only production of an “original.” FRE 1002. If there is an acceptable excuse for failure to produce the original, any secondary evidence is admissible (unlike, e.g., California which would require production of an existing “copy”–Cal. Ev. Code sections 1501-1505). None of the above is an original. The photocopy, however, is a “duplicate” and could be used, in most circumstances, in lieu of an original (FRE 1003), but it is not an original as defined in FRE 1001(3). Consequently, FRE 1002 does not require its production as a condition of receiving secondary evidence of the contents of the note.