IV. B. Best Evidence Rule
A testator died with a will that included a bequest to his spouse, "so long [they were] not living separate and apart at the time of [his] death." The personal representative of the decedent's estate challenged a claimant's entitlement to this bequest, arguing that the testator and the claimant were not living together at the time of the testator's death. The personal representative sought to introduce a sworn statement of a retired judge that, while she was on the bench, she had presided over a dissolution of marriage action between the claimant and the testator. The judge intended to testify that a judgment she issued a week prior to the testator's death stated, "the parties have sworn that they are currently living separate and apart." The personal representative had not attempted to obtain a copy of the judgment itself. The claimant objected that this evidence violated the best evidence rule. Is the court likely to overrule this objection?
No, because proof of a judgment generally requires the introduction of a certified or compared copy of the judgment. To establish the contents of a public record, such as a judgment, it is generally necessary to introduce a copy of the record that has been certified by the appropriate public custodian. In the alternative, a witness who has compared the copy with the original may testify as to its correctness. Only when neither of these methods is available can the contents of a public record be proved by other evidence.
A public sector employee sent an email to her supervisor accusing the supervisor of sexual harassment. The employee then printed a copy of the email and sent it by interoffice mail to the head of the department. The supervisor later sued the employee for libel. At trial, the head of the department established that, despite a diligent search, he was unable to locate the printed copy of the email. The supervisor sought to question the head of the department about his recollection of the content of the email. The employee objected that the supervisor could print out the email and introduce it into evidence. May the supervisor question the head of the department about the contents of the email?
No, because the supervisor can print out the email and introduce it into evidence. When the contents of a writing are at issue, the best evidence rule expresses a preference for the original document. When the original is unavailable through no fault of the evidence's proponent, the party may prove the contents of the writing, recording, or photograph by other means. However, if the information is stored electronically, any legible printout that reflects the information accurately is an original. In this case, the "original" is not unavailable because the employee or the supervisor can simply print another copy of the email.
A defendant was charged with theft of merchandise from a store. On the witness stand, the defendant admitted taking the merchandise on the day in question, but contended that she lacked the intent to do so. A rebuttal witness testified that she was standing outside the store after purchasing something, and she saw the defendant outside the store furtively removing the merchandise from her coat. When asked about her recollection of the date, the witness testified that she knew that it was the day in question because that date was on her receipt. The defendant objected, asserting that the witness must produce the receipt. How is the court likely to rule on this objection?
Overrule the objection, because the date is a collateral issue. The original document rule applies because the witness's knowledge of the date comes from the receipt. The court is likely to find, however, that this issue is not closely related to a controlling issue since the defendant has admitted to taking the merchandise on the date in question.
An artist entered into a written agreement to sell a patron a partially finished painting once it was complete. The patron later learned that the artist planned to sell the painting to a third party who offered to pay the artist more than the contract price. The patron filed suit to compel the artist to sell the painting to her in accord with the terms of their agreement, while the artist denied that the painting the artist planned to sell to the third party was the subject of the agreement with the patron. At trial, the patron did not introduce the written agreement or explain its absence. Rather, the patron sought to testify that, when she signed the agreement, the artist had pointed to the painting in question and stated that it was the patron's painting. The artist's attorney objected to the testimony that the artist identified the painting as belonging to the patron. How should the court rule?
Sustain the objection, because the patron failed to produce the written agreement or explain its absence. Under the best evidence rule, the original document or a reliable duplicate must be used to prove the contents of a writing unless its absence is satisfactorily explained. Here, the plaintiff intends to introduce the statement to prove that the written agreement refers to a specific painting without introducing the written agreement itself. Consequently, the patron may not introduce that statement to establish that the painting in question was the painting that was the subject of the agreement.
An apartment was burglarized while the owner was away, and a neighbor was charged with the burglary. At the neighbor's jury trial, the apartment manager sought to testify that an unmanned security camera had captured a video showing the neighbor entering and leaving the apartment just before and after the break-in. The apartment manager further testified that he had viewed the video, but that it had since been accidentally lost. The neighbor, noting personal animosity between the apartment manager and himself, argued that the camera was not working at the time of the break-in and that a video recording was never made. Which of the following accurately describes the role of the jury in determining issues related to the video?
The jury may determine both whether the video ever existed and whether the apartment manager's testimony accurately reflected the content of the video. Generally, the trial judge decides preliminary questions as to the admissibility of evidence, while the jury determines the weight and credibility of the evidence, once admitted. With respect to the best evidence rule (which applies when the contents of a video recording are offered to prove the events captured in the recording), the jury determines whether the alleged recording ever existed and, if so, whether other evidence as to the content of that recording reflects that content
An animal rights activist is on trial for the burglary of a pharmaceuticals lab. The prosecution's theory of the case is that the activist broke into the lab using a maintenance access tunnel connecting the lab to a neighboring building. The tunnel was difficult to locate and was not depicted on any blueprints of the building. The prosecution hopes to call the architect of the lab to testify that the activist visited his office on a number of occasions to interview him for a story, and that the activist had ample time to inspect a three-dimensional model of the planned lab that clearly depicted the access tunnel. The model has since been recycled as part of the architect's regular business practices and cannot be retrieved to be entered as evidence. The defense had no advance notice of the architect's testimony, and objects to the architect's description of the model. Can the architect properly testify as to the appearance of the model?
Yes, because the best evidence rule does not apply. The best evidence rule (also known as the original document rule) requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A "writing" is defined as "letters, words, numbers, or their equivalent set down in any form." A "recording" and "photograph" are similarly broadly defined. However, even under a broad interpretation of these terms, real physical evidence, such as a three-dimensional model, is not subject to the best evidence rule, even though the prosecution in this case contends that the defendant's knowledge of the existence of the tunnel was based on the model.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements. In fact, the defendant had no medical training. The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician. The sole issue in dispute is whether the defendant made such representations. At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant. The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the grounds that the prosecution was required to introduce an original contract under the best evidence rule. The court sustained the defendant's objection. Did the court err in making its ruling?
Yes, because the best evidence rule is not implicated in this case. The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying. In this case, the contents of the document are not at issue because the sole issue is whether the defendant made verbal representations that he was a physician. Accordingly, the best evidence rule is not implicated in this case.
In a probate proceeding, the beneficiary of a purported holographic will sought to introduce a photocopy of that will. An heir of the testator opposed the introduction of this will. Contending that the testator was not of sound mind when the will was written, the heir demanded that the beneficiary produce the original will. The applicable jurisdiction recognizes the validity of a holographic will and has adopted a dead man's statute. Is the photocopy of the will admissible without an explanation of the unavailability of the original?
Yes, because the photocopy is a duplicate of the original. The photocopy of the will is a duplicate, since it was produced by a process that accurately produces the original. Consequently, it is admissible to the same extent as the original unless there is a genuine question as to the authenticity of the original or other circumstances that would make its introduction unfair. Since the only challenge advanced by the heir relates to the validity of the will for reasons that lie beyond the authenticity of the original, the photocopy is admissible.
A photographer took a series of pictures of a crowd at a fair. The photographer subsequently learned that a stabbing had taken place at the fair around the time she had taken the pictures. Relying on a detailed physical description of the assailant that had been provided to the police, the photographer examined the photographs and identified the assailant. At the criminal trial of the assailant, the photographer was called as a witness to identify the defendant as the assailant. The defense objected, arguing that the photographer could not testify because the photographs were available. Should the court rule in the defense's favor?
Yes, because the photographs are the best evidence of the assailant's identity. The photographer does not have personal knowledge of the identity of the assailant apart from the information she gleaned from examining the photographs. Accordingly, the original document rule, which compels the production of the best evidence where the contents of a writing are at issue, requires that the photographs be produced to prove that the defendant was the assailant, or that their unavailability be explained.
