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Evidence MBE

Evidence MBE

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Published by browerma
Notes on the Evidence portion of the MBE
Notes on the Evidence portion of the MBE

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Published by: browerma on Jun 20, 2011
Copyright:Attribution Non-commercial


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A. Original Document Rule/Best Evidence (Rule 1002) (OL X.B) = BER
1. 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.
a. A rule of preference for the original but with many exceptions.
b. Purpose is to reduce risk of fraud, forgery, or mistake
c. Broadly defined - covers every tangible process to record words, pictures, etc. It includes the
following: letters, words, numbers, facts, emails, xerox copies, carbon copies, video tapes,
cds, dvds, mp3s, xrays

2. The “Best Evidence Rule” applies only where:
The “contents of a writing are in issue.”
3 areas will be discussed. The BER applies to the first two.

a. Legally operative documents (LOD)
(1) Where the writing has independent legal significance - the writing itself creates or
destroys a legal relationship

Contracts, wills, deed, mortgage, lease, driver’s license, movie (in an
obscenity action), photograph in a pornography action, written libel, divorce

b. Where the testimony is reliant on the writing, not on personal knowledge.

Victim shot to death. Wrote “my boyfriend threatened to kill me today” in
diary that police officer finds during lawful search. Officer may testify he
found the diary, but may not testify as to its contents.
because the diary itself is the best evidence

Doctor testifies, “The x-ray of plaintiff’s lungs shows distension
characteristic of emphysema.” No personal knowledge independent of
X-ray, BER applies, X-ray must be provided.

Contractor in suit against non-paying client. Contractor meticulously
records each days work in his notebook. From memory, he testifies as to

was done, time spent, etc. This is personal knowledge independent of

the writing and can be admitted.

c. Independent Source Rule. BER does not apply.


(1) Where a fact to be proved has a source independent from the writing (i.e., the fact
occurred regardless of whether the writing exists), then the contents are NOT in issue
and the BER does not apply.

Plaintiff sues defendant for breach of contract. The issue is the price of a television set.
Plaintiff testifies, “I paid $800 for the TV.” Defendant objects claiming the BER
required production of the receipt. How should the court rule?
Independent source rule applies - Fact that plaintiff purchased the television
exists independently of the sales receipt - he has the goddamn tv

(a) Sales receipt not required to prove that goods/services were paid for
(b) Birth certificate not required to prove your age
(c) Death certificate or marriage certificate
(d) Caveat: If, however, the witness testifies “my records show that I paid the
bill” - the receipt would be required. If a receipt/record is entered into
evidence to prove payment, birth, etc - you must produce the original

More Examples (BER applies):
If you are trying to prove that a film is obscene, the film is the subject
matter. It must be seen before the issue can be determined.

Whether the terms of the contract said X or Y. The actual language of the
contract is at issue. Must produce the contract.

Image from a surveillance camera from a bank. In order to tie
identification of the thief to the camera, it must become a part of the case.

Plagiarism – We must produce the original document and the document as

Malpractice – If a doctor misread an X-ray, we must see the X-ray.

d. MBE caveat: BER does not apply to “inscribed chattels” --- Examples include a
license plate, policeman’s badge, tombstone, sign on a bus, speedlimit sign

3. An original includes either the original itself or a duplicate.
a. There are 3 substitutes for an original:
(1) Duplicate or xerox copy
(2) Certified copy of a public record
(3) Summaries of voluminous records

b. Admissibility of Duplicates – Rule 1003
(1) A duplicate is admissible to the same extent as an original unless there is a genuine
question of authenticity. There are no degrees of secondary evidence under the FRE


(2) A duplicate is any counterpart that accurately reproduces the original.
Any negative or print of a photograph is viewed as an original

B. Admissibility of Other Evidence of Contents (Rule 1004) (OL XD)

1. The original is not required, and other evidence of the contents of a writing, recording, or
photograph is admissible if mnemonic LOCS applies.
a. Lost - Where all the originals have been lost or destroyed, the original is not required unless
the proponent lost or destroyed them in bad faith
b. Opponent - Where opponent has possession of original and refuses to deliver it
c. Collateral - Original not required where writing, recording, or photograph is not closely
related to a controlling issue.
d. Subpoena - Where the original cannot be obtained by any available judicial

2. Secondary Evidence is any alternative to the document.
E.g. testimony, handwritten duplication -- allowed once good cause is shown for non-production

C. Public Records (Rule 1005) (OL X.E)
1. The contents of an official record may be proved by copy, certified as correct in accordance with
Rule 902 or by witness testimony upon comparison with the original.

D. Summaries (Rule 1006) (OL X.F)
1. The contents of voluminous writings, recordings or photographs that cannot conveniently be
examined in court may be presented in the form of a chart, summary, or calculation.
2. The originals shall be made available for examination, copying (or both) by other parties at a
reasonable time and place. The court may order production in court also.

3. Foundation:

a. Showing that the originals themselves would be admissible hearsay - Under Rule 1006,
summaries and charts admitted as evidence are admitted substantively
b. Opponent must be given reasonable pretrial access
c. Summaries must be properly authenticated by the preparer

Large 500-person law firm was being sued for falsifying billable hours over a ten
year period. Judge ordered the office manager to prepare a computer printout
of all the names of the attorneys and all the billable hours in the ten-year period.
She took the voluminous data and inputted into her computer and gave the
judge a printout. That computer printout processed human input. The question
asked will it be admissible? A) admissible under the business record exception; B)
admissible as summaries of voluminous records. The answer was B.


E. Testimony or Written Admission of Party (Rule 1007) (OL X.G)
1. Contents of a writing may be proved by the testimony, deposition, or admission of the opposing
party without accounting for the nonproduction of the original writing.


Functions of Court and Jury (Rule 1008) (OL X.H)
1. Finder of fact (usually the jury) decides
a. whether the asserted writing (the original) ever existed
b. whether another writing produced at trial is the original
c. the accuracy of the writing
d. Jury has final decision on whether the item is genuine and how much weight to give it

2. Compare: The judge determines preliminary facts – Rule 104(b)
a. whether the BER applies to a writing
b. whether a writing is an original or a duplicate
c. whether “good cause” exists for nonproduction of the original (LOCS)
d. whether summaries are admissible
e. whenever admissibility depends upon the fulfillment of a condition of fact

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