6. The judge & jury (FRE 1008)
a. Judge
The judge decides any factual questions that are essential to decide the technical application of this rule under 104(a).
For example, (1) whether a particular item of evidence is an original; (2) whether a particular item is a duplicate under FRE 1001, and therefore presumptively admissible under FRE 1003; (3) whether the original has been lost or destroyed, as provided in FRE 1004(1); and (4) whether the evidence related to a collateral matter or rather to a controlling issue under FRE 1004(4).
b. Exceptions by the jury
There are 3 exceptions: (1) whether the original ever existed; (2) whether a writing, recording, or photograph produced at trial is an original; (3) whether the evidence offered correctly reflects the contents of the original.
Saturday, April 30, 2011
Intro to the Federal Rules of Evidence - 32
5. Priority
a. Originals
FRE 1001 defines an original as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. Thus, the rule employs an intent test to determine whether a writing is an original.
Example: D writes a handwritten letter to X possibly defaming P. D then hands the letter to his secretary, who retypes it and sends the types version. At P’s libel suit against D, it is the derivative types version, not the handwritten version, which is the original that must be produced if available.
b. Types of secondary evidence in exceptions
i) Duplicates
They should be exactly w/in the statutory meaning – an exact copy of an original (FRE 1001(4) & FRE 1003). Any copies produced manually, whether by typing or handwriting, are not duplicates.
Admissible even though the original is available, unless (1) a dispute as to the authenticity of the original, or (2) unfair in the circumstances to admit the duplicate instead.
ii) Certified copies of public records (FRE 1005)
Purpose: to prevent the loss or absence of public records due to litigation.
iii) Voluminous writings – summaries (FRE 1006)
iv) Other exceptions (FRE 1004) – the offering party’s choice.
Satisfactory foundations are needed: (1) originals lost or destroyed; (2) original not obtainable; (3) original in possession of opponent; (4) collateral matters.
a. Originals
FRE 1001 defines an original as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. Thus, the rule employs an intent test to determine whether a writing is an original.
Example: D writes a handwritten letter to X possibly defaming P. D then hands the letter to his secretary, who retypes it and sends the types version. At P’s libel suit against D, it is the derivative types version, not the handwritten version, which is the original that must be produced if available.
b. Types of secondary evidence in exceptions
i) Duplicates
They should be exactly w/in the statutory meaning – an exact copy of an original (FRE 1001(4) & FRE 1003). Any copies produced manually, whether by typing or handwriting, are not duplicates.
Admissible even though the original is available, unless (1) a dispute as to the authenticity of the original, or (2) unfair in the circumstances to admit the duplicate instead.
ii) Certified copies of public records (FRE 1005)
Purpose: to prevent the loss or absence of public records due to litigation.
iii) Voluminous writings – summaries (FRE 1006)
iv) Other exceptions (FRE 1004) – the offering party’s choice.
Satisfactory foundations are needed: (1) originals lost or destroyed; (2) original not obtainable; (3) original in possession of opponent; (4) collateral matters.
Intro to the Federal Rules of Evidence - 31
4. What constitutes “proving the content of a writing”?
a. Applicability of the rule
i) Written transactions
The rule applies where the writing is a legally operative or dispositive instrument such as a contract, will, or divorce decree.
ii) Written method of proof
The rule applies where the knowledge of a witness concerning a fact results from having read it in the document.
b. Inapplicability of the rule
i) Existence, execution, etc.
If all that is proved is that a writing exists, was executed, or was delivered, the best evidence rule dose not apply.
ii) Incidental records
The fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by introduction of the writing.
iii) Collateral writings (FRE 1004(4))
The rule does not apply to writings of minor importance to the matter in controversy. The test of collateralness is likely to take into account: centrality of the writing to the major issues of a litigation; complexity of the relevant features of the writing; and existence of a genuine dispute as to the content of the writing.
a. Applicability of the rule
i) Written transactions
The rule applies where the writing is a legally operative or dispositive instrument such as a contract, will, or divorce decree.
ii) Written method of proof
The rule applies where the knowledge of a witness concerning a fact results from having read it in the document.
b. Inapplicability of the rule
i) Existence, execution, etc.
If all that is proved is that a writing exists, was executed, or was delivered, the best evidence rule dose not apply.
ii) Incidental records
The fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by introduction of the writing.
iii) Collateral writings (FRE 1004(4))
The rule does not apply to writings of minor importance to the matter in controversy. The test of collateralness is likely to take into account: centrality of the writing to the major issues of a litigation; complexity of the relevant features of the writing; and existence of a genuine dispute as to the content of the writing.
Intro to the Federal Rules of Evidence - 30
3. Only writings and other recorded communications
a. Photographic evidence
The FRE explicitly expand the best evidence rule to include all photographs (photographs, x-rays, movies, etc.) whose contents are to be proved.
Photos are generally not offered to prove their contents, so the best evidence rule usually does not apply regardless of when the item is deemed to be a writing. But occasionally, photos are offered to prove their contents.
Pictorial evidence – photos, x-rays, movies.
i) “illustrative of what witness saw” method
A foundation for the admissibility of photographs is generally laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object.
ii) “Silent Witness” theory
In cases of x-rays, surveillance tapes, and ATM photographs and the like, the process that produces the photo is authenticated (FRE 901(9)). It is called the silent witness theory of admission, because once the process is shown to be reliable, the picture or movie speaks for itself as to its contents.
The content of a photographer is being proved, for example, to establish its obscene nature or to identify a person in a photo taken by a bank surveillance camera. In such cases, FRE 1002 bars testimony or other evidence of content in lieu of producing the photograph itself. (§10.3, p.1505)
X- rays
The best evidence rule is applied, but in a limited extent that FRE 703 allows an expert to give an opinion based on matters not in evidence, and that hospital records admissible under FRE 803(b) commonly contain reports interpreting X-rays by the staff radiologist, who qualified as an expert. (ACN. 1002)
b. Sound recordings
When a sound recording is introduced for the purpose of proving the recording’s content, the best evidence rule applies.
a. Photographic evidence
The FRE explicitly expand the best evidence rule to include all photographs (photographs, x-rays, movies, etc.) whose contents are to be proved.
Photos are generally not offered to prove their contents, so the best evidence rule usually does not apply regardless of when the item is deemed to be a writing. But occasionally, photos are offered to prove their contents.
Pictorial evidence – photos, x-rays, movies.
i) “illustrative of what witness saw” method
A foundation for the admissibility of photographs is generally laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object.
ii) “Silent Witness” theory
In cases of x-rays, surveillance tapes, and ATM photographs and the like, the process that produces the photo is authenticated (FRE 901(9)). It is called the silent witness theory of admission, because once the process is shown to be reliable, the picture or movie speaks for itself as to its contents.
The content of a photographer is being proved, for example, to establish its obscene nature or to identify a person in a photo taken by a bank surveillance camera. In such cases, FRE 1002 bars testimony or other evidence of content in lieu of producing the photograph itself. (§10.3, p.1505)
X- rays
The best evidence rule is applied, but in a limited extent that FRE 703 allows an expert to give an opinion based on matters not in evidence, and that hospital records admissible under FRE 803(b) commonly contain reports interpreting X-rays by the staff radiologist, who qualified as an expert. (ACN. 1002)
b. Sound recordings
When a sound recording is introduced for the purpose of proving the recording’s content, the best evidence rule applies.
Intro to the Federal Rules of Evidence - 29
C. BEST EVIDENCE RULE – ORIGINAL DOCUMENT RULE (ART. X)
1. Rationale
The exact words of a writing should be presented to the court because of a hazard of inaccuracy in common methods of approximating the contents of a writing and a great risk of error of oral testimony based on memory.
2. Requirements
a. Original documents
The original document must be produced, rather than using a copy or oral testimony about the document.
b. Prove the content of a writing
The rule applies only where what is to be proved is the content of a writing.
c. Excuses (FRE 1004)
The rule does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.
1. Rationale
The exact words of a writing should be presented to the court because of a hazard of inaccuracy in common methods of approximating the contents of a writing and a great risk of error of oral testimony based on memory.
2. Requirements
a. Original documents
The original document must be produced, rather than using a copy or oral testimony about the document.
b. Prove the content of a writing
The rule applies only where what is to be proved is the content of a writing.
c. Excuses (FRE 1004)
The rule does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.
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