Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. The Best Evidence Rule (982)

Problem - Whiteacre (984)

Answer and Analysis:

Not admissible. The exact words of a writing are often "of more than average importance, particularly as respects operative or dispositive instruments . . . since a slight difference in words may mean a great difference in rights." McCormick, Evidence 410. Secondary evidence is susceptible to human or mechanical error. Moreover, a writing which is not introduced can undercut the verdict. A writing is a powerful form of proof because it persists over time and is probative more or less independently of witness testimony.

Problem - Sparkplugs (985)

Answer and Analysis:

Objection overruled. She may describe the sparkplugs without producing them, although the tactics of persuasion strongly impel production. There is no best evidence objection because the sparkplugs are not a "writing" within the meaning of the rule. The best evidence rule does not apply to chattels. As stated in Weinstein's Evidence, "Except for the inclusion of photographs within the coverage of the rule, the Advisory Committee deliberately chose not to expand the requirement of an original into areas that are not concerned with words." IU1. at sec. 1001(1) [O1 ].

The problem is drawn from London v Standard Oil Co. of Calif., 417 F.2d 820 (9th Cir. 1969).

Problem - Accident Report Forms (985)

Answer and Analysis:

Objection overruled. D is testifying about the collision, not about the document. The question to which he is responding is not, "What did the accident report say?" As the Advisory Committee Note to FRE 1002 states, "an event may be proved by nondocumentary evidence, even though a written record of it was made."

Problem - No Ticket, No Laundry (992)

Answer and Analysis:

(1) Objection sustained. The original document -- the slip -must be produced because its contents are being proved. Under the parole evidence rule, by writing down the contract, the writing becomes the embodiment of the contract. Thus P is attempting to testify to the contents of a writing, and has given no reason for failing to produce the writing.

(2) The carbon copy would be admissible as a duplicate, having been created "by the same impression as the original," FRE 1001(4), and there being no genuine issue raised as to the authenticity of the original and no circumstances indicating unfairness in permitting the use of the duplicate, FRE 1003. The federal rules, by the inclusion of the quoted phrase in FRE 1001(4), eliminated doubt about the status of such carbon copies that existed under previous law.

Problem - Barnyard Justice (992)

Answer and Analysis:

Objection sustained. In this defamation suit the plaintiff is attempting to prove the content of the photo and has offered no explanation for his attempt to prove its contents by secondary evidence. See FRE 1001(2).

Problem - The Dangerous Druggist (992)

Answer and Analysis:

Objection overruled. D is testifying to P's statement, not to the contents of his recording of P's statement.

Problem - Arson Interrogation (993)

Answer and Analysis:

A is testifying to D's statement, not to the contents of the recording of it.

(1) It would make no difference if the statement was taperecorded.

(2) Now there would be a best evidence objection. The question A is answering is, "What did the document say?"

Problem - The Tapes Case (996)

Answer and Analysis:

Objection overruled. As stated by the court in the case from which the problem was drawn:

The expert's calculations were admissible under Fed.R.Evid. 1006 . . . . This rule was intended precisely for a case such as this where it would have been unnecessarily time-consuming to play the tapes of all 3,000 calls. For the purposes of Fed.R.Evid. 1006, the recordings need not have been introduced into evidence but only "made available." They were available.

United States v. Clements, 588 F.2d 1030, 1039 (5th Cir. 1979).

Problem - The Unlisted Number (996)

The court's ruling is correct. The Advisory Committee's Note to FRE 1002 states, "the rule [does not] apply to testimony that books or records have been examined and found not to contain any reference to a designated matter."

The problem is drawn from United States v. Madera, 574 F.2d 1320 (5th Cir. 1978). In the actual case (as opposed to the statement in the problem) defense counsel did not object to the agent's testimony that he had looked up the various spellings of Holt and had found nothing. Counsel did object when the prosecution then offered the phonebooks. The objection was on grounds of relevancy, and was overruled. The court made clear nonetheless that the agent's testimony was proper even without the introduction of the phonebooks, notwithstanding FRE 1002. 574 F.2d 1320, 1323 n.3.

Problem - The Electronic Scrivener (998)

Answer and Analysis:

The photocopy of the telex is offered as a duplicate, FRE 1001(4), admissible under FRE 1003 unless a genuine question is raised as to the authenticity of the original or it would be unfair to admit the duplicate. D has raised a question about the accuracy of the copy, which really goes to the question whether it is a duplicate. If the judge determines that D has raised a genuine question or that it would be unfair to admit the photocopy as a duplicate, P could still offer the photocopy under 1004(1) as secondary evidence of a document lost or destroyed not in bad faith. In this case, P should be put to the burden of explaining why he cannot produce the original. In other words, the best evidence rule should apply. Assuming, however, that P cannot produce the original and can show that he did not destroy the original in bad faith, then the copy, even though its accuracy has been challenged, should be admitted pursuant to FRE 1008(c), with the question of the accuracy of the copy left to the trier of fact.

Problem - The Guarantor (999)

(1) Objection overruled: the letter was destroyed, and was not destroyed in bad faith. Therefore evidence other than the original of the writing is admissible to prove the content of the writing. FRE 1004(1).

(2) Objection overruled: D is testifying to the contents of the lost letter, not to the contents of his longhand copy. FRE 1002 simply does not apply. As the Advisory Committee Note to FRE 1002 states, "an event may be proved by nondocumentary evidence, even though a written record of it was made." There are no degrees of secondary evidence under the federal rules.

Problem - The Cocaine Connection (999)

There is a best evidence objection here, but it should be overruled on the basis of FRE 1004(1) because the agent did not act in bad faith. This permits her to testify to the content of the original writing. If she remembered the contents, she could have testified to the contents directly. Since she could not remember, it was proper to introduce the telephone form as her past recollection recorded pursuant to FRE 803(5). The telephone form which is introduced should be the original on which she recorded her recollection.

The problem is drawn from United States v. Valencia, 609 F.2d 603 (2d Cir. 1979), particularly at 633.

Problem - Burning Romeo (1003)

The Massachusetts court held that Joannes could not introduce secondary evidence of the contents of the letter, having destroyed the letter under unexplained circumstances. This would also be the result under the Federal Rules. Joannes, as the proponent of the secondary evidence, would have the burden of establishing that he had not destroyed the letter in bad faith, a burden that he could not discharge by leaving the circumstances of his destruction of the letter unexplained.

Problem - Close Enough for Government Work? (1004)

The IRS has shown that the original of the waiver document has been destroyed, and that the destruction of the document was not in bad faith, in the sense that the document was not destroyed for the purpose of avoiding its production in litigation. Therefore, under FRE 1001(4), the original would not be required, and the content of the writing could be proved by circumstantial evidence.

The problem is drawn from United States v Convy, 631 F.2d 599 (9th Cir. 1980), where the court permitted the proof through secondary evidence. This case, however, suggests the need for a broader definition of bad faith in criminal prosecutions where the government relies on the contents of a document it is unable to produce.

Problem - The Thunderbird Valley Scam (1012)

The problem is drawn from United States v. Johnson, 594 F.2d 1253 (9th Cir. 1979). The answers set out below to the various questions asked in the problem are drawn from the Johnson court's opinion.

(1) "Is W's testimony admissible?": W's testimony is not admissible because the government, as the proponent of the summary evidence, has not shown that the summary is based on admissible evidence. FRE 1006 is not a means of avoiding the hearsay rules by summarizing what would otherwise be incompetent evidence.

(2) "What foundation must the government lay before this evidence is admitted?": The government must show that the information being summarized is itself admissible evidence. There is some conflict about whether the underlying information must already have been admitted into evidence. The Johnson court states that it need not be. This is consistent with the final sentence of FRE 1006 ("The court may order that they [the voluminous writings] be produced in court."), which would make no sense if there was a requirement that the underlying documents must already be in evidence as a precondition to the admission of a summary.

In addition, the proponent of the summary must convince the court that the matters to be summarized cannot conveniently be examined discretely. The concept of "convenience" leaves much to the discretion of the trial judge.

(3) "Must the government show it would be impossible, difficult, or simply inconvenient to produce the 260 files?": Simply inconvenient, and the inconvenience relates to the examination of the documents, not to their production.

(4) "Must the government show that the underlying, summarized documents are admissible?": Yes, if the summary is being introduced for the truth of the matters asserted, and not simply as a basis for an expert's opinion.

(5) "May W testify to what the summary shows, or must the summary itself be produced?": If the summary is a writing of some sort, which it will be in virtually all situations, then testimony as to what the summary shows without producing the summary itself will run afoul of the best evidence rule.

(6) "Is the actual summary admissible as an exhibit?": There is some conflict about whether the summary is admissible evidence. The Johnson court states that summaries are admissible.

(7) "Does it make any difference to the jury?": It makes no difference to the jury, unless the trial judge automatically allows exhibits "in evidence" to go into the jury room.

(8) "Does it make any difference if W is qualified as an expert?": If W is qualified as an expert, and the underlying voluminous writings, although hearsay, are of a sort reasonably relied upon by experts in the particular field, then the expert would be able to summarize the underlying data. The Johnson court recognizes, but does not address this question. The answer offered here is the logical implication of FRE 703.

(9) "Must W be qualified as an expert?": No. The witness need only be competent to make the summary.

(10) "Is the government required to give advance notice to defendants that they intend to rely on a summary?": Yes, if the underlying voluminous writings are not already in evidence. This requirement of notice stems from FRE 1006's direction that the proponent of the summary must make the underlying information available for examination by other parties at a reasonable time.

(1 1) "Does notice obviate any of the necessary foundational requirements?": No. The government in the Johnson case claimed that because the defendant had been put on notice of the government's intention to use a summary, the hearsay problems with respect to the underlying information could be overlooked. The court rejected this argument.

(12) Is there a Sixth Amendment problem in the use of summaries in criminal cases?": No. Since the summary is a presentation of admissible evidence, there is no Sixth Amendment problem.

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