b'\x0c\x0cEvidence:\n\nBest Evidence Rule\n\nColin Miller\n\nCALI eLangdell\xc2\xae Press 2012\n\n\x0cNotices\nThis is the first version of the first edition of this chapter. It was\nupdated March 21, 2012. Check elangdell.cali.org for the latest\nedition/version and revision history.\nThis work by Colin Miller is licensed and published\nby CALI eLangdell Press under a Creative\nCommons Attribution-NonCommercial-ShareAlike 3.0 Unported\nLicense. CALI and CALI eLangdell Press reserve under copyright all\nrights not expressly granted by this Creative Commons license. 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The cover art design is a copyrighted work of CALI, all\nrights reserved. The CALI graphical logo is a trademark and may not\nbe used without permission.\nShould you create derivative works based on the text of this book or\nother Creative Commons materials therein, you may not use this\nbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\n\n\x0cthereof, to imply endorsement or otherwise without written\npermission from CALI.\nThis material does not contain nor is intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney in\ntheir jurisdiction. The editors have endeavored to provide complete\nand accurate information in this book. However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\niii\n\n\x0cAbout the Author\nProfessor Miller teaches Evidence, Criminal Procedure, Criminal\nLaw, and Civil Procedure. He is the creator and Blog Editor of\nEvidenceProf\nBlog\n(http://lawprofessors.typepad.com/evidenceprof/), a member of the\nLaw Professor Blogs Network. He is the Editor of Illinois Criminal\nProcedure and drafted a 100 page report comparing the Federal Rules\nof Evidence to Illinois evidentiary principles, which was used in the\ncreation of the first Illinois Rules of Evidence.\nProfessor Miller received his B.A. degree with distinction from the\nUniversity of Virginia and his J.D. (Order of the Coif) from the\nWilliam & Mary Law School.\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. eLangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\xef\x80\xa0 Compatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\xef\x82\xb7\xef\x80\xa0 The right for educators to remix the materials through more\nlenient copyright policies.\n\xef\x82\xb7\xef\x80\xa0 The ability for educators and students to adopt the materials\nfor free.\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\nv\n\n\x0cTable of Contents\nNotices ........................................................................................ ii\nAbout the Author ........................................................................iv\nAbout CALI eLangdell Press ......................................................v\nTable of Contents .......................................................................vi\nPreface ...................................................................................... vii\nBest Evidence Rule Chapter ....................................................... 1\nIntroductory Note......................................................................... 1\nI. Historical Origins of the Best Evidence Rule .......................... 1\nII. Article X: The Modern Best Evidence Rule ............................3\nA. Rule 1002: The Rule\xe2\x80\x99s Scope............................................................. 3\nB. Rule 1001: Defining the Relevant Terms ........................................ 8\nC. Rule 1003: The Duplicate Exception............................................. 13\nD. Rule 1004: Excusing Nonproduction of Originals ..................... 16\nE. Rule 1005: Public Records............................................................... 22\nF. Rule 1006: Summaries ...................................................................... 24\nG. Rule 1007: Admissions .................................................................... 26\nH. Rule 1008: Functions of the Court and Jury ................................ 28\nI. The Best Evidence Framework ....................................................... 30\nJ. Best Evidence Pleadings ................................................................... 31\n\n\x0cPreface\nThe Best Evidence Rule, contained in Article X of the Federal Rules\nof Evidence (Rules 1001-1008) and state counterparts, is a Rule that\nrequires a party seeking to prove the contents of a writing, recording,\nor photograph to produce the original (or a duplicate) or account for\nits nonproduction. Through a series of cases and hypotheticals\ndrawn from actual cases, this chapter gives readers a roadmap for\nhow to address any Best Evidence Rule issue in practice.\n\nvii\n\n\x0c\x0cBest Evidence Rule Chapter\nIntroductory Note\nIn 2009, the Committee on Rules of Practice and Procedure of the\nJudicial Conference of the United States Courts decided to \xe2\x80\x9crestyle\xe2\x80\x9d\nthe Federal Rules of Evidence. The goal in this project was to make\nthe Rules more user friendly rather than to enact substantive changes.\nAt the end of each section of this chapter, there is a side-by-side\ncomparison between the prior language of each Rule in Article X and\nthe language of each new \xe2\x80\x9crestyled\xe2\x80\x9d Rule. Because the changes were\nintended to be stylistic only, everything discussed in this chapter\nshould continue to be good law after the \xe2\x80\x9crestyled\xe2\x80\x9d Rules take effect\non December 1, 2011.\nI. Historical Origins of the Best Evidence Rule\nPre-Roman inhabitants of England, who were mostly illiterate, placed\ngreat importance on ceremony and \xe2\x80\x9cviewed written documents\naffecting property or contractual rights not as mere indicia of those\nrights, but as the rights themselves.\xe2\x80\x9d Cynthia A. DeSilva, California\xe2\x80\x99s\nBest Evidence Rule Repeal: Toward a Greater Appreciation for Secondary\nEvidence, 30 MCGEORGE L. REV. 646, 648 (1999). While this mindset,\ndubbed the \xe2\x80\x9cmedieval mind\xe2\x80\x9d by John Henry Wigmore1 eventually\ndissipated before disappearing entirely in the early 1800s, it\npermeated evidence law, setting the stage for both the doctrine of\nprofert in curia2 and the Best Evidence Rule. In courts of law, the\nancient pleading doctrine of profert in curia required a party seeking\nrelief based upon a written instrument to allege that he could produce\nthe original. If a party could not produce the original document when\nits contents were at issue, he literally lost the rights it allegedly\ncreated.\n\nSee John Henry Wigmore, WIKIPEDIA,\nJohn_Henry_Wigmore (last visited Jan. 13, 2012).\n1\n\nhttp://en.wikipedia.org/wiki/\n\nSee Definition of Profert in Curia L, BLACK\xe2\x80\x99S LAW DICTIONARY,\nhttp://blackslawdictionary.org/profert-in-curia-l/ (last visited Jan 13, 2012).\n2\n\n\x0cClosely related to the doctrine of profert in curia is the Best Evidence\nRule, also known as the Original Document Rule. Under the Best\nEvidence Rule, first enunciated in Ford v. Hopkins, (1700) 91 Eng.\nRep. 250, 250-51 (K.B.), the proponent of evidence concerning the\ncontents of a written document had to produce the original\ndocument or account for its nonproduction. See Solomon Salako,\nChapter 13: The Hearsay Rule, INSITE LAW MAGAZINE,\nhttp://www.insitelawmagazine.com/evidencech13.htm (last visited\nJan. 13. 2012). If the proponent could neither produce the original\ndocument nor provide a satisfactory reason for its nonproduction, he\ncould not prove the contents of the document through secondary\nevidence such as witness testimony or a handwritten copy. Courts\napplied this Best Evidence Rule with an understanding of the central\nposition that the written word occupies in the law and the knowledge\nthat \xe2\x80\x9ca slight variation of words may mean a great difference in\nrights.\xe2\x80\x9d Johnson v. Sourignamath, 816 A.2d 631 (2003). The requirement\nthat the proponent of a document produce an original or account for\nits nonproduction was thus an effort to ensure that a party\'s\nsubstantive rights were not affected by the possibility of fraud or\nerrors of human transcription and memory attendant in handwritten\ncopies and testimony.\nThe twentieth century witnessed the invention of new technologies,\nsuch as the process of xerography3, invented by attorney Chester\nCarlson4 in 1937, which \xe2\x80\x9crevolutionize[d] the document reproduction\nindustry\xe2\x80\x9d because originals could now be reproduced, ostensibly\nwithout the errors inherent in human transcription. SCM Corp. v.\nXerox Corp., 645 F.2d 1195, 1197 (2d Cir. 1981). In response to these\nnew technologies, states began enacting exceptions to the Best\nEvidence Rule that allowed for the admission of \xe2\x80\x9cduplicates\xe2\x80\x9d or\n\xe2\x80\x9cduplicate originals\xe2\x80\x9d created without manual transcription even when\nproponents could not account for the nonproduction of originals.\nSee Xerography, WIKIPEDIA, http://en.wikipedia.org/wiki/Xerography (last visited\nJan. 13, 2012).\n3\n\nSee Chester Carlson, WIKIPEDIA, http://en.wikipedia.org/wiki/Chester_Carlson\n(last visited Jan. 13, 2012).\n4\n\n\x0cThese changes paved the way for the eventual adoption of Article X,\nand specifically Rule 1003, of the Federal Rules of Evidence in 1975.\nII. Article X: The Modern Best Evidence Rule\nArticle X of the Federal Rules of Evidence, consisting of Rules 10011008, contains the current Best Evidence Rule; most states have\nmodified their Best Evidence Rules to conform to the Federal Rules.\nA. Rule 1002: The Rule\xe2\x80\x99s Scope\nFederal Rule of Evidence 1002 contains the Best Evidence Rule: "An\noriginal writing, recording, or photograph is required in order to\nprove its contents unless these rules or a federal statute provides\notherwise." An example of a writing triggering a Best Evidence Rule\nanalysis can be found in United States v. Rivera-Carrizosa, 35 F.3d 573\n(9th Cir. 1994), in which the defendant was convicted of unlawful\nreentry or presence in the United States after deportation. At trial, an\nagent testified that he reviewed the defendant\xe2\x80\x99s birth certificate from\nhis immigration file and that the certificate stated that the defendant\nwas born in Mexico. Id. On the defendant\xe2\x80\x99s appeal, the Ninth Circuit\nreversed his conviction because the prosecution did not produce his\nbirth certificate at trial, meaning that the agent\xe2\x80\x99s testimony violated\nthe Best Evidence Rule. Id.\nFor an example of how the Best Evidence Rule applies to\nphotographs, see United States v. Shores, 93 F. App\xe2\x80\x99x. 868 (6th Cir.\n2004), where the defendant was charged with being a felon in\npossession of a firearm and ammunition. Officers seized the firearm\nand ammunition during a search of the defendant\xe2\x80\x99s residence, during\nwhich they saw, but did not seize, a photograph of the defendant\nwith a holstered revolver that appeared identical to the revolver that\nthey recovered from the defendant\xe2\x80\x99s bedroom. See id. The officers\ntestified regarding the photograph at trial, and the Sixth Circuit found\nthat this testimony would have violated the Best Evidence Rule but\nfor the fact that the defendant was placed on notice of the officers\xe2\x80\x99\ntestimony and had the photograph in his possession during trial,\ntriggering Federal Rule of Evidence 1004(3), which will be discussed\ninfra. See id.\n\n3\n\n\x0cAn example involving a recording can be found in Dyer v. State, 26 So.\n3d 700 (Fla. Dist. Ct. App. 2010), in which a defendant was convicted\nof stealing videos from an adult video store. The prosecution\xe2\x80\x99s main\nevidence against the defendant was the testimony of the store\xe2\x80\x99s\nmanager who reviewed the surveillance video from the night of the\nrobbery. See id. at 701. Because the prosecution did not produce the\nsurveillance video at trial or satisfactorily account for its\nnonproduction, the appellate court reversed the defendant\xe2\x80\x99s\nconviction on appeal, concluding that the manager\xe2\x80\x99s testimony\nviolated the Best Evidence Rule. See id. at 703.\nOn the other hand, the Best Evidence Rule is inapplicable when a\nparty seeks to admit evidence or testimony that relates to a writing,\nrecording, or photograph, but does not seek to prove its contents.\nFor example, in State v. Clark, 377 S.E.2d 54 (N.C. 1989), the\ndefendant allegedly murdered his wife, and the trial court permitted a\nwitness to testify that she discovered a life insurance policy on the\nwife\xe2\x80\x99s life in the defendant\'s personal belongings although the\nprosecution did not produce the original policy. On the defendant\'s\nappeal, the Supreme Court of North Carolina affirmed the trial\ncourt\'s decision, concluding that the witness\' testimony \xe2\x80\x9cwas offered\nnot to prove contents or terms, but simply to show defendant\xe2\x80\x99s\nknowledge that the policy existed.\xe2\x80\x9d Id. at 60.\nFurthermore, "[t]he best-evidence rule does not apply where a party\nseeks to prove a fact which has an existence independent of any\nwriting, even though the fact might have been reduced to, or is\nevidenced by, a writing." JAG Consulting v. Eubanks, 72 S.W.3d 549,\n555 (Ark. Ct. App. 2002). For instance, in Eubanks, an Arkansas\nappellate court found in a shop owner\xe2\x80\x99s lawsuit for conversion of his\ntools and equipment that the trial court properly permitted his wife\nto testify about his lost income resulting from the conversion because\nshe had personal knowledge of the lost income. The fact that the\nwife later used this knowledge to prepare his tax returns did not make\nher testimony inadmissible pursuant to the Best Evidence Rule even\nthough the plaintiff did not produce the tax returns at trial. See id. at\n242.\n\n\x0cFinally, when evidence qualifies as a writing and as chattel5, an item\nof tangible movable or immovable property, a court has discretion to\ntreat it as chattel and beyond the scope of the Best Evidence Rule.\nThus, in United States v. Yamin, 868 F.2d 130 (5th Cir. 1989), a\nprosecution for conspiracy and trafficking in counterfeit watches, the\nFifth Circuit found no error with the admission of testimony by a\nwitness that she purchased watches with counterfeit trademarks from\nthe defendant even though the prosecution did not produce those\nwatches at trial. See id. at 134-35. The Fifth Circuit found that the\nwatches constituted both chattel and writings and that the dangers of\ninaccuracy and fraud that the Best Evidence Rule are designed to\nprotect against were not implicated by the admission of the testimony\nbecause \xe2\x80\x9c[t]he viewing of a simple and recognized trademark is not\nlikely to be inaccurately remembered.\xe2\x80\x9d Id. This was especially true\nbecause the prosecution did produce other counterfeit watches sold\nby the defendant and seized from the defendant\xe2\x80\x99s store. See id. In\nUnited States v. Buchanan, 605 F.3d 518 (8th Cir. 2010), the Eighth\nCircuit reached the same conclusion with regard to testimony\nconcerning an inscription in a safe. See also Colin Miller, \xe2\x80\x9cSafety in\nNumbers: Eight Circuit Finds Best Evidence Rule Not Triggered by\nInscription on Safe.\xe2\x80\x9d EVIDENCEPROF BLOG, (May 6, 2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010/05/1002chattel--us-v-buchanan----f3d------2010-wl-1753346ca8iowa2010.html\nHypothetical 1\nChris Vagenos files an action pursuant to The Fair Debt\nCollection Practices Act against LDG Financial Services,\nLLC, alleging that the company engaged in deceptive\npractices in connection with the collection of a consumer\ndebt. His claims are based upon a telephone message left on\nhis cell phone by LDG. Vagenos claims, however, that the\noriginal message was destroyed when he switched his cellular\ntelephone provider. If Vagenos wants to testify about the\nFor definition see Chattel, LEGAL INFORMATION INSTITUTE\xe2\x80\x99S WEX,\nhttp://www.law.cornell.edu/wex/chattel (last visited Jan. 17, 2012).\n5\n\n5\n\n\x0ccontents of the telephone message, does his testimony trigger\na Best Evidence Rule analysis? Cf. Vagenos v. LDG Financial\nServices, LLC, 2009 WL 5219021 (E.D.N.Y. 2009); Colin\nMiller, \xe2\x80\x9cAdverse (Dis)Possession: Eastern District Of New\nYork Order Adverse Inference Instruction In Best Evidence\nRuling.\xe2\x80\x9d EVIDENCEPROF BLOG, (Jan. 17, 2010),\nhttp://lawprofessors.typepad.com/evidenceprof/2010/01/1\n0041-adverse-inference-instructionvagenos-vldg-financialservices-llcslip-copy-2009-wl-5219021edny2009.html.\nHypothetical 2\nDennis is on trial for robbing a bank in Virginia on August 2,\n2011 at 3:42 P.M. Dennis\xe2\x80\x99 defense is that it was impossible\nfor him to be robbing a bank in Virginia at that time because\nhe was at a post office in North Carolina mailing a letter on\nAugust 2, 2011 at 3:45 P.M. At trial, as Dennis begins to\ntestify about mailing the letter, the prosecutor objects that\nDennis\xe2\x80\x99 testimony will violate the Best Evidence Rule\nbecause he did not produce the letter at trial. Should the\njudge sustain the objection?\nHypothetical 3\nJoseph Churchill is charged with safecracking and related\ncrimes after allegedly stealing money and checks from a lockbox type safe at Joseppi\xe2\x80\x99s Pizza at 2:25 A.M. Later that\nmorning, Detective Sergeant Dale Parrish viewed a\nsurveillance camera videotape of the parking lot adjacent to\nthe pizza parlor, which showed a van in the lot at 2:24 A.M.\nthat then left approximately 4 minutes later. Parrish later\narrested Churchill that same day while he was driving a van.\nAt trial, the prosecution did not introduce the videotape into\nevidence, but Parrish testified that the vehicle in the video\nwas \xe2\x80\x9ca van like the one Churchill was driving.\xe2\x80\x9d After he is\nconvicted, Churchill appealed, claiming that this testimony\nviolated the Best Evidence Rule. Is he right? See State v.\nChurchill, 2002 WL 598315 (Ohio Ct. App. 2002).\n\n\x0cHypothetical 4\nOfficer Angela Timmerman pulls over a car believed to be\ninvolved in a road rage incident. Officer Timmerman asks the\ndriver of the car for his name, and he responds, \xe2\x80\x9cMichael Lee\nJohns.\xe2\x80\x9d Officer Timmerman then asks the driver for\nsomething to verify his identity, and he gives her a sales\nreceipt for the vehicle, which contains the name \xe2\x80\x9cCarl\nWiskow.\xe2\x80\x9d Officer Timmerman then takes the receipt to her\ncruiser to run a records check. Before Timmerman can arrest\nthe driver, he starts his car and drives away at a high rate of\nspeed, but Officer Timmerman eventually catches and arrests\nthe driver, who turns out to be Carl Wiskow. Wiskow is\ncharged with fleeing a police officer and giving a false name\nto the police. At trial, when Officer Timmerman is asked\nwhat led her to run the records\xe2\x80\x99 check after she pulled over\nthe driver, she starts to testify regarding the receipt. Defense\ncounsel objects that the prosecution had not offered the\nreceipt into evidence, meaning that the testimony violates the\nBest Evidence Rule. Should the judge sustain the objection?\nSee State v. Wiskow, 2009 WL 3172156 (Minn. Ct. App. 2009);\nsee also Colin Miller, \xe2\x80\x9cCan I Get a Receipt For That?: Court of\nAppeals of Minnesota Finds Best Evidence Rule Not\nViolated by Testimony Regarding Receipt Not Offered to\nProve its Contents.\xe2\x80\x9d EVIDENCEPROF BLOG, (Oct. 7, 2009),\nhttp://lawprofessors.typepad.com/evidenceprof/2009/10/b\nest-evidence-receiptstate-of-minnesota-respondent-v-cain-leewiskow-appellant----nw2d------2009-wl3172156minnapp.html.\nHypothetical 5\nStore patrons who were arrested after an altercation with\nstore employees at a Wal-Mart brought a Section 1983 claim\nagainst Wal-Mart, the city, the police department, and several\nindividual police officers. In response, the defendants move\nfor summary judgment. Wal-Mart has a surveillance video of\nthe altercation, but it does not present it at the summary\njudgment hearing. Instead, it presents the affidavits of several\n\n7\n\n\x0cindividuals who were present at the altercation and described\nwhat they saw. The patrons claim that these affidavits are\ninadmissible pursuant to the Best Evidence Rule because the\nsurveillance video is the original, and the defendants have not\naccounted for its nonproduction. Are they right? See Jackim v.\nSam\xe2\x80\x99s East Inc., 2010 WL 2101962 (6th Cir. 2010).\nPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1002. Requirement of\nOriginal\n\nRule 1002. Requirement of the\nOriginal\n\nTo prove the content of a writing,\nrecording, or photograph, the\noriginal writing, recording, or\nphotograph is required, except as\notherwise provided in these rules or\nby Act of Congress.\n\nAn original writing, recording, or\nphotograph is required in order to\nprove its content unless these rules\nor a federal statute provides\notherwise.\n\nB. Rule 1001: Defining the Relevant Terms\nFederal Rule of Evidence 1001 defines the relevant terms contained\nin Rule 1002 and sets forth the definition of a \xe2\x80\x9cduplicate\xe2\x80\x9d as used in\nRule 1003. According to Rule 1001(a)-(b), \xe2\x80\x9c[a] \xe2\x80\x98writing\xe2\x80\x99 consists of\nletters, words, numbers, or their equivalent set down in any form,\xe2\x80\x9d\nand \xe2\x80\x9c[a] recording\xe2\x80\x99 consists of letters, words, numbers, or their\nequivalent recorded in any manner.\xe2\x80\x9d Under this definition, the Best\nEvidence Rule covers a wide range of evidence, such as title records\n(See White Indus., Inc. v. Cessna Aircraft Co., 611 F. Supp. 1049 (W.D.\nMo. 1985)), claim forms (See United States ex rel. El-Amin v. George\nWashington Univ., 522 F. Supp. 2d 135 (D.D.C. 2008)), bills (See Oliver\nv. Sioux City Community School Dist., 389 NW 2d 665 (Iowa 1986)),\ndeeds (See Gleason v. Galvin, 374 Mass. 574, 373 NE.2d 357, (Mass.\n1978)), and sound recordings (See Hall v. Texas, 829 S.W.2d 407 (Tex.\nCt. App. 1992)).\nMoreover, courts have given the phrase \xe2\x80\x9ctheir equivalent\xe2\x80\x9d an\nexpansive reading, capturing an even broader range of items under\nthe purview of the Best Evidence Rule. For instance, in Seiler v.\nLucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), the plaintiff, graphic\n\n\x0cartist Lee Seiler, \xe2\x80\x9cclaimed that creatures known as \xe2\x80\x98Imperial Walkers6\xe2\x80\x99\nwhich appeared in The Empire Strikes Back infringed Seiler\'s\ncopyright on his own creatures called \xe2\x80\x98Garthian Striders.\xe2\x80\x99\xe2\x80\x9d Seiler,\nhowever, did not obtain his copyright until after the movie was\nreleased in 1980, but he alleged that he first published his \xe2\x80\x9cGarthian\nStriders\xe2\x80\x9d in 1976 and 1977. Id. at 1317-18. At trial, Seiler could not\nproduce his original drawings and instead sought to prove his case\nthrough \xe2\x80\x9creconstructions\xe2\x80\x9d he created for trial. Id. at 1318. Seiler\nalleged that the Best Evidence Rule did not apply to his drawings\nbecause they did not consist of letters, words, or numbers. Id. at\n1318-19. The Ninth Circuit disagreed, finding that his drawings\n\xe2\x80\x9c\xe2\x80\x99consist[ed] not of letters, words, or numbers\xe2\x80\x99 but of \xe2\x80\x98their\nequivalents.\xe2\x80\x99\xe2\x80\x9d Id. at 1318-19. It found that the drawings were\n\xe2\x80\x9cequivalents\xe2\x80\x9d because \xe2\x80\x9c[j]ust as a contract objectively manifests the\nsubjective intent of the makers, so Seiler\'s drawings are objective\nmanifestations of the creative mind.\xe2\x80\x9d Id. at 1320.\nFederal Rule of Evidence 1001(c) more clearly defines the term\n\xe2\x80\x9cphotograph.\xe2\x80\x9d According to the Rule, the term \xe2\x80\x9c\xe2\x80\x98photograph\xe2\x80\x99 means\na photographic image or its equivalent stored in any form.\xe2\x80\x9d Federal\nRule of Evidence 1001(d) indicates that \xe2\x80\x9c[a]n \xe2\x80\x98original\xe2\x80\x99 of a\nphotograph includes the negative or any print from it.\xe2\x80\x9d Furthermore,\nbefore Rule 1001(d) was restylized, it stated that \xe2\x80\x9cif data are stored on\na computer or similar device, any printout or other output readable\nby sight, shown to reflect the data accurately, is an original.\xe2\x80\x9d\nTherefore, if the proponent of the evidence creates data, such as\nwork logs, not on paper, but on a computer, any printout from the\ncomputer is admissible as an original and the proponent does not\nhave to introduce the computer or hard drive at trial. The \xe2\x80\x9coutput\nreadable by sight\xe2\x80\x9d portion of the prior Rule covers evidence such as\ncomputer-generated displays.\nRule 1001(d) also defines \xe2\x80\x9c[a]n \xe2\x80\x98original\xe2\x80\x99 of a writing or recording [as]\nthe writing or recording itself or any counterpart intended to have the\nsame effect by a person who executed or issued it.\xe2\x80\x9d Therefore, when\nFor image see Walker (Star Wars), WIKIPEDIA, http://en.wikipedia.org/\nwiki/Walker_%28Star_Wars%29 (last visited Jan. 17, 2012).\n6\n\n9\n\n\x0ca person executes a document such as a contract, will, or deed, the\nwriting that he executed is clearly an original. Moreover, under the\nRule there can be multiple originals. To wit, \xe2\x80\x9c[i]f each party to a\ncontract, lease, sale or other transaction receives or retains a copy of\nthe instrument that embodies or evidences the transaction, each copy\nis considered an original, regardless of the mechanism or the\nchronology of their creation.\xe2\x80\x9d Olin Guy Wellborn III, The \xe2\x80\x9cBest\nEvidence\xe2\x80\x9d Article of the Texas Rules of Evidence, 18 St. Mary\xe2\x80\x99s L.J. 99, 105\n(1986).\nFinally, Federal Rule of Evidence 1001(e) defines a \xe2\x80\x9cduplicate\xe2\x80\x9d as \xe2\x80\x9ca\ncounterpart produced by a mechanical, photographic, chemical,\nelectronic, or other equivalent process or technique that accurately\nreproduces the original.\xe2\x80\x9d Rule 1001(e) thus refers to four kinds of\nduplicates: \xe2\x80\x9csame impression (such as carbon or so-called \xe2\x80\x98carbonless\xe2\x80\x99\nor \xe2\x80\x98formpack\xe2\x80\x99 copies), same matrix (such as offset printing, often\ncalled \xe2\x80\x98multilith\xe2\x80\x99; stencil duplication or \xe2\x80\x98mimeograph\xe2\x80\x99; or hectograph\nor \xe2\x80\x98ditto\xe2\x80\x99), photography (such as micrography or microfiche), and\nchemical reproduction (such as electrostatic or xerographic\n\xe2\x80\x98photocopies\xe2\x80\x99).\xe2\x80\x9d Courts have used the \xe2\x80\x9cother equivalent techniques\xe2\x80\x9d\nlanguage of Rule 1001(e) to qualify, inter alia, facsimiles as duplicates.\nEssentially, then, \xe2\x80\x9cany mechanically created reproduction is a\nduplicate; a manually created production, because of the risk of\nhuman error, is not.\xe2\x80\x9d Wellborn, supra at 107.\nHypothetical 6\nJames Kodadeck claims that he made numerous drawings of\ntwo cartoon characters called \xe2\x80\x9cBeavis and Butthead\xe2\x80\x9d in 1991.\nHe alleges that he gave one of the drawings to a man who\nidentified himself as Mike Judge. In 1993, MTV aired a TV\nshow entitled \xe2\x80\x9cMTV\xe2\x80\x99s Beavis and Butthead,\xe2\x80\x9d with creative\ncredit going to Mike Judge. Kodadeck brings a claim\nsounding in copyright infringement and unfair competition\nagainst Judge. Kodadeck does not produce his 1991 drawings\nin response to the defendant\xe2\x80\x99s motion for summary\njudgments, but he does produce illustrations that he drew\nafter the premiere of MTV\xe2\x80\x99s show that allegedly closely\napproximate his 1991 drawings. Can the illustrations be\n\n\x0cadmitted, or would their admission violate the Best Evidence\nRule? Cf. Kodadeck v. MTV Networks, Inc., 152 F.3d 1209 (9th\nCir. 1998).\nHypothetical 7\nVincent Bennett is charged with possession with intent to\ndistribute and importation of marijuana. At trial, the\nprosecution wants to have U.S. Customs Officer Malcolm\nChandler testify that he discovered a global positioning\nsystem (\xe2\x80\x9cGPS\xe2\x80\x9d) while searching Bennett\'s boat and that the\nGPS revealed that Bennett\'s boat had traveled from Mexican\nwaters to the San Diego Bay. Is Chandler\xe2\x80\x99s testimony\nadmissible in the absence of the GPS? See United States v.\nBennett, 363 F.3d 947 (9th Cir. 2004).\nHypothetical 8\nThe Canyon County Prosecuting Attorney files a Petition\nunder the Child Protective Act requesting that the court take\njurisdiction over the children of John and Jane Doe. At trial,\nthe prosecution seeks to present several photographs of\ninjuries to the children produced from data downloaded from\na camera to a computer system and printed out at the police\nstation. An expert witness testifies that the colors of the\nprints were not "neutrally balanced" and reflected color biases\ntoward red and yellow hues. Are these prints originals for\nBest Evidence Rule purposes? See Idaho Dept. of Health and\nWelfare v. Doe, 2010 WL 4342147 (Idaho Ct. App. 2010);\nColin Miller, \xe2\x80\x9cColor Me Surprised: Court of Appeals of Idaho\nFinds No Problem with Color Biased Photos Under Best\nEvidence Rule.\xe2\x80\x9d EVIDENCEPROF BLOG, (Nov. 10, 2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010/11/b\nest-evidence-idaho-dept-of-health-and-welfare-v-doe-p3d2010-wl-4342147idaho-app2010.html.\n\n11\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1001. Definitions\n\nRule 1001. Definitions That\nApply to This Article\n\nFor purposes of this article the\nfollowing definitions are applicable:\n(1) Writings and recordings.\n\xe2\x80\x98\xe2\x80\x98Writings\xe2\x80\x99\xe2\x80\x99 and \xe2\x80\x98\xe2\x80\x98recordings\xe2\x80\x99\xe2\x80\x99 consist of\nletters, words, or numbers, or their\nequivalent, set down by handwriting,\ntypewriting, printing, photostating,\nphotographing, magnetic impulse,\nmechanical or electronic recording, or\nother form of data compilation.\n(2) Photographs. \xe2\x80\x98\xe2\x80\x98Photographs\xe2\x80\x99\xe2\x80\x99\ninclude still photographs, X-ray films,\nvideo tapes, and motion pictures.\n(3) Original. An \xe2\x80\x98\xe2\x80\x98original\xe2\x80\x99\xe2\x80\x99 of a\nwriting or recording is the writing or\nrecording itself or any counterpart\nintended to have the same effect by a\nperson executing or issuing it. An\n\xe2\x80\x98\xe2\x80\x98original\xe2\x80\x99\xe2\x80\x99 of a photograph includes the\nnegative or any print therefrom. If data\nare stored in a computer or similar\ndevice, any printout or other output\nreadable by sight, shown to reflect the\ndata accurately, is an \xe2\x80\x98\xe2\x80\x98original\xe2\x80\x99\xe2\x80\x99.\n(4) Duplicate. A \xe2\x80\x98\xe2\x80\x98duplicate\xe2\x80\x99\xe2\x80\x99 is a\ncounterpart produced by the same\nimpression as the original, or from the\nsame matrix, or by means of\nphotography, including enlargements\nand miniatures, or by mechanical or\nelectronic re-recording, or by chemical\nreproduction, or by other equivalent\ntechniques which accurately reproduces\nthe original.\n\nIn this article:\n(a) A \xe2\x80\x9cwriting\xe2\x80\x9d consists of letters,\nwords, numbers, or their equivalent\nset down in any form.\n(b) A \xe2\x80\x9crecording\xe2\x80\x9d consists of\nletters, words, numbers, or their\nequivalent recorded in any manner.\n(c) A \xe2\x80\x9cphotograph\xe2\x80\x9d means a\nphotographic image or its\nequivalent stored in any form.\n(d) An \xe2\x80\x9coriginal\xe2\x80\x9d of a writing or\nrecording means the writing or\nrecording itself or any counterpart\nintended to have the same effect by\nthe person who executed or issued\nit. For electronically stored\ninformation, \xe2\x80\x9coriginal\xe2\x80\x9d means any\nprintout \xe2\x80\x94 or other output\nreadable by sight \xe2\x80\x94 if it accurately\nreflects the information. An\n\xe2\x80\x9coriginal\xe2\x80\x9d of a photograph includes\nthe negative or a print from it.\n(e) A \xe2\x80\x9cduplicate\xe2\x80\x9d means a\ncounterpart produced by a\nmechanical, photographic,\nchemical, electronic, or other\nequivalent process or technique\nthat accurately reproduces the\noriginal.\n\n\x0cC. Rule 1003: The Duplicate Exception\nFederal Rule of Evidence 1003 is consistent with the emerging state\ntrend finding mechanically produced duplicates admissible even when\nproponents could not account for the nonproduction of originals. It\nstates that \xe2\x80\x9c[a] duplicate is admissible to the same extent as the\noriginal unless a genuine question is raised about the original\xe2\x80\x99s\nauthenticity or the circumstances make it unfair to admit the\nduplicate.\xe2\x80\x9d Under Rule 1003, duplicates are thus admissible as long as\nthey can meet the liberal authentication test laid out in Rule 901(a),\nunless one of the exceptions applies. Every state has either adopted a\ncounterpart to Rule 1003 or some version of the similar Uniform\nPhotographic Copies of Business and Public Records as Evidence\nAct. 28 USC \xc2\xa7 1732.\nThe exception contained in Federal Rule of Evidence 1003 applies\nwhen there are questions about whether the original ever really\nexisted, whether a signature on the original was actually the signature\nof a party or a forgery, or whether the original was altered before it\nwas copied, such as through photoshopping or the use of white out.\nSee, e.g., Opals on Ice Lingerie v. Bodylines, Inc., 320 F.3d 362, 371 (2nd\nCir. 2003) (\xe2\x80\x9cBodylines contends that Opals \xe2\x80\x98whited out\xe2\x80\x99 the note\nbelow Sautter\'s signature\xe2\x80\xa6Accordingly, Bodylines has raised a\ngenuine question as to the authenticity of the original.\xe2\x80\x9d)\nFor instance, in Boswell v. Jasperson, 266 F. Supp. 2d 1314 (D. Utah\n2003), in 1974, Marsden and Melva Larsen sold land, including a feed\nyard, to Garth Boswell. Garth later obtained loans on the property\nfrom the Zions First National Bank and the Farmers Home\nAdministration. Id. at 1316. In 1983, Garth filed a bankruptcy\npetition, which listed the feed yard as part of his real estate property\nholdings, and his son, William P. Boswell, sought to establish that he\nhad an ownership interest in the feed yard. Id. As support for his\nclaim, William introduced an alleged copy of the original deed from\nthe Larsens to his father, which he claimed was altered with the\nconsent of all parties \xe2\x80\x9cto substitute his name, William P. Boswell and\nhis d/b/a Rafter \xe2\x80\x98B\xe2\x80\x99 Ranch, as grantees.\xe2\x80\x9d Id. William admitted,\nhowever, that the loan holders were never notified of this alleged\nalteration. Id. Meanwhile, Garth contradicted himself, alternatively\n\n13\n\n\x0ccontending that the original deed was and was not altered. Id. at\n1316-17. Although the court failed to set forth a test for determining\nwhether there was a genuine question raised as to the original\xe2\x80\x99s\nauthenticity, it concluded that \xe2\x80\x9cthere [wa]s a genuine question as to\nthe authenticity of the proffered altered deed.\xe2\x80\x9d Id. at 1321.\nThat said, it is the rare case in which a court has found that an\nopposing party has successfully raised a genuine question concerning\nthe authenticity of an original. See Wellborn, supra at 114. For\nexample, in Alderson v. Bonner, 132 P.3d 1261, 1264-66, the Idaho\nAppellate Court found no problem with the prosecution\xe2\x80\x99s\nintroduction of a 35-minute copy of a videotape despite the fact that\nthe officer who made the copy previously reported that the original\nvideo was 45 minutes long. In Amin v. Flagston Hospitality Mgmt., 2005\nWL 3054599 (D. Minn. 2005), the court found no problem with the\nadmission of a copy of a declaration that a witness denied signing\ndespite the fact that the last page of the copy had printing across the\ntop indicative of a fax while the rest of the document did not.\nThe second exception contained in Rule 1003 applies where only part\nof an original document or recording is reproduced in a duplicate,\nand the remainder is needed for some purpose cross-examination.\nCourts have consistently found that the second exception contained\nin Rule 1003 applies when duplicates fail to fully reproduce important\nor critical parts of an original document or recording. Such was the\ncase in Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir.\n1980), in which the Tenth Circuit found that the district court\nproperly excluded the photocopy of a deed that did not reproduce\nthe reservation clause.\nHypothetical 9\nE.G. Lewis purchases a car and reaches an oral agreement\nwith Edward Smith, under which Smith and his wife will pay\nLewis $222 in exchange for use of the car. Lewis claims that\nthis oral agreement was later reduced to a written contract\nunder which the Smiths would continue paying him $222 a\nmonth until his car loan was paid off. Smith claims that he\nnever signed such an agreement and that he only agreed to\n\n\x0cmake the monthly payment as long as he needed the car.\nLewis sues Smith for breach of contract and produces a\nphotocopy of the alleged written contract at trial. His\nhandwriting expert compared the signature on the photocopy\nwith other documents signed by Smith and testified that the\nsignature on the photocopy was \xe2\x80\x9cprobably\xe2\x80\x9d by Smith but he\ncould not be sure without examining the original. The expert\ntestified that it is possible to scan a signature on to a\ndocument but that he found no evidence of tampering. But\nhe also found that the signature on the photocopy was not an\nexact match with any of Smith\xe2\x80\x99s other signatures that he\nexamined. Is the photocopy admissible? See Lewis v. Smith,\n2003 WL 578619 (Ohio Ct. App. 2003).\nHypothetical 10\nJohn Galvan, a USPS employee, is injured on February 11,\n2004, after a chair and table apparatus he was seated in\ncollapsed. Galvin brings a negligence and strict liability action\nagainst Krueger International Inc., the manufacturer of the\nchair and table apparatus. Krueger brings a motion for\nsummary judgment dismissing the complaint, claiming that\nIllinois product liability statute of repose, which prevents a\nplaintiff from bringing a strict product liability claim ten years\nafter the date that the product was sold, expired on\nDecember 3, 2003. In support, Krueger presents photocopies\nof invoices and shipping manifests indicating that Krueger\xe2\x80\x99s\nchair table apparatus was scheduled to arrive at Galvan\xe2\x80\x99s\nUSPS office in December 3, 1993. Galvan counters that these\nphotocopies violate the Best Evidence Rule because they only\nreproduce the fronts of these invoices and shipping manifests\nand not the backs, which contain terms and conditions.\nGalvan claims that these backs could alter the court\xe2\x80\x99s\ndecision. Is Galvan correct? See Galvan v. Krueger International\nInc., 2011 WL 111576 (N.D. Ill. 2011).\n\n15\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1003. Admissibility of\nDuplicates\n\nRule 1003. Admissibility of\nDuplicates\n\nA duplicate is admissible to the\nsame extent as an original unless (1)\na genuine question is raised as to the\nauthenticity of the original or (2) in\nthe circumstances it would be unfair\nto admit the duplicate in lieu of the\noriginal.\n\nA duplicate is admissible to the\nsame extent as the original unless a\ngenuine question is raised about\nthe original\xe2\x80\x99s authenticity or the\ncircumstances make it unfair to\nadmit the duplicate.\n\nD. Rule 1004: Excusing Nonproduction of Originals\nFederal Rule of Evidence 1004 states that there are four\ncircumstances under which the proponent of evidence concerning\nthe contents of a writing, recording, or photograph is not required to\nproduce the original and instead can prove its contents through\nsecondary evidence. Secondary evidence includes any type of\nevidence besides the original, \xe2\x80\x9cranging from photographs and\nhandwritten copies to oral testimony of a witness whose credibility is\nsuspect.\xe2\x80\x9d United States v. Gerhart. 538 F.2d 807 (8th Cir. 1976). Indeed,\ncourts have even held that when the opponent of a duplicate has\nmade a successful challenge to it under Rule 1003, the proponent can\nstill introduce the \xe2\x80\x9cduplicate\xe2\x80\x9d if he establishes one of the Rule 1004\ncircumstances. Furthermore, courts have relied upon the Advisory\nCommittee\xe2\x80\x99s Note to Rule 1004 in concluding that there are no\n\xe2\x80\x9cdegrees\xe2\x80\x9d of secondary evidence. Accordingly, once the proponent\nmeets his burden of proof in establishing one of the Rule 1004\ncircumstances, he is free to submit any type of secondary evidence;\nthere is no requirement, for instance, that a \xe2\x80\x9ccopy be introduced in\npreference to\xe2\x80\xa6oral testimony\xe2\x80\x9d on the ground that the former is\n\xe2\x80\x98better\xe2\x80\x99 evidence. Unfortunately, while most courts have placed the\nburden of proof on proponents to establish one of the Rule 1004\ncircumstances, they have consistently failed to flesh out the nature of\nthat burden.\n\n\x0cThe first circumstance is triggered under Rule 1004(a) when\n\xe2\x80\x9c[a]ll originals are lost or have been destroyed, and not by the\nproponent acting in bad faith.\xe2\x80\x9d An example of this circumstance can\nbe found in United States v. McMahon, 938 F.2d 1501 (1st Cir. 1991),\nwhere the First Circuit found that the district court properly allowed\ntestimony about the contents of a note allegedly written by the\ndefendant. The court came to this conclusion under Rule 1004(a)\nbecause the defendant did \xe2\x80\x9cnot suggest that the government lost or\ndestroyed the document in bad faith.\xe2\x80\x9d It is a difficult task for the\nopponent of secondary evidence to prove that the proponent of\nsecondary evidence lost or destroyed the original in bad faith. Courts\nhave determined that the proponents of secondary evidence satisfied\nRule 1004(a) even when they acknowledged negligently destroying\ndocuments (See Estate of Gryder v. CIR, 705 F.2d 336 (8th Cir. 1983)),\nusing a process to copy a tape which they knew would destroy the\noriginal (See United States v. Balzano, 687 F.2d 6 (1st Cir. 1982)), and\nerasing tapes in the ordinary course of business (See United States v.\nWorkinger, 90 F.3d 1409 (9th Cir. 1996)).\nFurthermore, a couple of recent court decisions have heightened the\nhurdle the opponents of secondary evidence must leap in opposing\nthe admission of secondary evidence pursuant to Rule 1004(a). As\nnoted, courts typically require the proponent of secondary evidence\nto establish one of the Rule 1004 circumstances such as proving that\nthe original was lost or destroyed without bad faith. In two 2007\ndecisions, however, the District Court for the Eastern District of\nMichigan indicated that the opponent of secondary evidence \xe2\x80\x9chas the\nburden of establishing bad faith\xe2\x80\x9d under Rule 1004(a), shifting the\nburden from the proponent to the opponent. See United States v.\nCulberson, 2007 WL 1452902 (E.D. Mich. 2007); United States v.\nCulberson, 2007 WL 1266131 (E.D. Mich. 2007).\nThe second circumstance applies under Rule 1004(b) when\n"an original cannot be obtained by any available judicial process.\xe2\x80\x9d For\ninstance, in Allegra v. Bowen, 670 F. Supp. 465 (E.D.N.Y. 1987), the\nplaintiff applied for disability insurance because she allegedly suffered\nfrom muscular dystrophy since early childhood. The plaintiff claimed\nthat her childhood physician in Italy diagnosed her with this\n\n17\n\n\x0ccondition and attempted to prove this diagnosis through a sworn\nphysician\'s letter rather than the original clinical documents in which\nthe diagnosis was made. Id. at 468. An Administrative Law Judge\ndenied the plaintiff\'s application, finding that the letter was\ninadmissible under the Best Evidence Rule, but the District Court for\nthe Eastern District of New York reversed, concluding that the\noriginal clinical documents were unobtainable \xe2\x80\x9cby available process\nor procedure\xe2\x80\x9d under Rule 1004(b) because they were Italy, allowing\nthe plaintiff to prove their contents through secondary evidence such\nas the letter. Id. at 468-69. Courts have made clear that the\nproponents of secondary evidence need not take Herculean efforts to\ntry to obtain the original for Rule 1004(b) to apply. When, however,\nproponents of duplicates fail to engage in \xe2\x80\x9cdiligent\xe2\x80\x9d efforts to\nestablish that originals are lost, destroyed, or unobtainable, courts will\nfind that they cannot introduce secondary evidence pursuant to Rule\n1004(a) or 1004(b).\nThe third circumstance applies under Rule 1004(c) when "the party\nagainst whom the original would be offered had control of the\noriginal; was at that time put on notice, by pleadings or otherwise,\nthat the original would be a subject of proof at the trial or hearing;\nand fails to produce it at the trial or hearing." The District Court for\nthe Eastern District of California found this portion of the Rule\napplied in United States v. Cuesta, 2997 WL 2729853 (E.D. Cal. 2007),\nwhere the defendant appealed his conviction for being a minor\nknowingly driving a vehicle containing alcohol. At the defendant\'s\ntrial, the prosecution requested that the defendant produce his\ndriver\'s license to prove his age, but he refused; thereafter, the\nmagistrate judge allowed the prosecution to call the ranger who\narrested the defendant to testify as to the defendant\'s date of birth on\nhis driver\'s license. Id. at *20. The court rejected the defendant\'s\nargument that this testimony violated the Best Evidence Rule, finding\npursuant to Rule 1004(c) that the driver\'s license was in the\ndefendant\'s possession and that he failed to produce it at his trial. Id.\nFinally, under the "collateral matters" circumstance enunciated in\nRule 1004(d), secondary evidence is admissible when "[t]he writing,\nrecording, or photograph is not closely related to a controlling issue."\n\n\x0cIn Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), a movie theater\npatron who was arrested for public intoxication and resisting arrest\nbrought a Section 1983 action against the municipality and his\narresting officer for excessive force. On appeal, after the district court\nawarded damages to the plaintiff, the arresting officer alleged that the\ndistrict court erred by allowing Jackson to question a witness about\nthe contents of a flyer describing the arrest and \xe2\x80\x9casking any witnesses\nto contact the person named on the flyer.\xe2\x80\x9d Id. at 1109-10. The Eighth\nCircuit determined that the Best Evidence Rule did not preclude the\ntestimony despite the nonproduction of the flyer because, inter alia,\nthe contents of the flyer were \xe2\x80\x9ccollateral to the principal issue in the\ntrial.\xe2\x80\x9d Id. at 1110.\nHypothetical 11\nKeith Lanzon is charged with attempting to persuade, entice,\nor coerce a minor to engage in sexual activity after he\nallegedly sent instant messages to an undercover officer\nposing as a 14 year-old girl. The government produced\ntranscripts of these messages before they were deleted after\nthe agent logged out of the instant message program. At trial,\nwhen the prosecution seeks to admit the transcripts at trial,\nLanzon objects that their admission would violate the Best\nEvidence Rule. Should his objection be sustained? See United\nStates v. Lanzon, 639 F.3d 1293 (11th Cir. 2011); Colin Miller,\n\xe2\x80\x9cWord Perfect?: 11th Circuit Finds Prosecution Properly\nAuthenticated IMs Cut-and-Pasted Into Word Document.\xe2\x80\x9d\nEVIDENCEPROF\nBLOG,\n(May\n7,\n2011)\nhttp://lawprofessors.typepad.com/evidenceprof/2011/05/te\nxt-message-word-authenticate-us-v-lanzon-f3d-2011-wl1662901ca11-fla2011.html.\nHypothetical 12\nKevin Murray met with Police Chief Vincent Carlone to\narrange a controlled purchase of cocaine from John Grullon.\nThe police supplied Murray with a $100 bill to purchase the\ncocaine. At a meeting at Grullon\xe2\x80\x99s condominium, Grullon\nagreed to sell Murray a small amount of cocaine for $60,\n\n19\n\n\x0cwhich Grullon retrieved from the hemline of a curtain\ncovering a sliding glass door. Murray paid Grullon with the\n$100 bill and received $40 in change plus a bag of cocaine.\nGrullon is charged with possession with intent to distribute\ncocaine. At trial, the prosecution claims that by the time the\npolice obtained a search warrant, Grullon had already used\nthe $100 bill, so it was in general circulation and could not be\nrecovered. The prosecution seeks to admit a photocopy of\nthe front side of the $100 bill under Rule 1003, but the court\ndeems it inadmissible under Rule 1003(2) because the\nphotocopy fails to completely reproduce the original. Can the\nprosecution still get the photocopy admitted? See State v.\nGrullon, 984 A.2d 46 (R.I. 2009); Colin Miller, \xe2\x80\x9cBetter\nEvidence or Best Evidence?: Supreme Court of Rhode Island\nEngages in Detailed Analysis of Best Evidence Rule.\xe2\x80\x9d\nEVIDENCEPROF\nBLOG,\n(Jan.\n10,\n2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010/01/ri\nstate-v-grullon----a2d------2009-wl-4722264ri2009.html.\nHypothetical 13\nTim Cooper reached an agreement with Publishing Group,\npursuant to which Publishing Group would print an\nadvertisement for Cooper\xe2\x80\x99s financial planning business in one\nof its magazines. A Publishing Group employee mailed a\ncopy of the agreement to Cooper, who signed it and faxed it\nback to Publishing Group. Cooper retained possession of the\noriginal agreement. Publishing Group printed the\nadvertisement in the November/December issue of the\nmagazine, and when Cooper failed to pay for the\nadvertisement, Publishing Group sued Cooper for breach of\ncontract. Cooper\xe2\x80\x99s defense was that the agreement he signed\nprovided that if he did not pay for the advertisement by\nOctober 2nd, Publishing Group would not print it and both\nparties would be relieved from their obligation to perform\nunder the agreement. Publishing Group does not produce the\nagreement at trial but does have several of its employees\ntestify concerning the terms of the agreement. Cooper claims\n\n\x0cthat this testimony violated the Best Evidence Rule. Is he\nright? See Publishing Group, Ltd. v. Cooper, 2011 Ohio 2872\n(Ohio Ct. App. 2011).\nHypothetical 14\nDavid Winn is charged with aggravated burglary and related\ncrimes based upon a burglary at the house of Treva\nHummons. Winn admits to committing the burglary but\nclaims that he committed it under duress. At trial, several\nwitnesses testify that Winn was friends with Hummons\xe2\x80\x99\ngrandson. The prosecution also introduces into evidence a\ncrime scene photograph of Hummons\xe2\x80\x99 living room. In the\nphotograph, there is a barely visible photograph on top of\nHummons\xe2\x80\x99 television. The girlfriend of Hummons\xe2\x80\x99 grandson\ntestifies that the photograph is a photograph of Winn and\nHummons\xe2\x80\x99 grandson. Winn objects that this testimony\nviolates the Best Evidence Rule because the prosecution did\nnot produce this second photograph at trial. Should the court\nsustain his objection? See State v. Winn, 877 N.E.2d 1020\n(Ohio Ct. App. 2007).\n\n21\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1004. Admissibility of Other\nEvidence of Contents\n\nRule 1004. Admissibility of\nOther Evidence of Content\n\nThe original is not required, and\nother evidence of the contents of a\nwriting, recording, or photograph is\nadmissible if\xe2\x80\x94\n\nAn original is not required and\nother evidence of the content of a\nwriting, recording, or photograph is\nadmissible if:\n\n(1) Originals lost or destroyed. All\noriginals are lost or have been\ndestroyed, unless the proponent lost\nor destroyed them in bad faith; or\n\n(a) all the originals are lost or\ndestroyed, and not by the\nproponent acting in bad faith;\n\n(2) Original not obtainable. No\noriginal can be obtained by any\navailable judicial process or\nprocedure; or\n(3) Original in possession of\nopponent. At a time when an\noriginal was under the control of\nthe party against whom offered, that\nparty was put on notice, by the\npleadings or otherwise, that the\ncontents would be a subject of\nproof at the hearing, and that party\ndoes not produce the original at the\nhearing; or\n\n(b) an original cannot be\nobtained by any available judicial\nprocess;\n(c) the party against whom the\noriginal would be offered had\ncontrol of the original; was at\nthat time put on notice, by\npleadings or otherwise, that the\noriginal would be a subject of\nproof at the trial or hearing; and\nfails to produce it at the trial or\nhearing; or\n(d) the writing, recording, or\nphotograph is not closely related\nto a controlling issue.\n\n(4) Collateral matters. The\nwriting, recording, or photograph is\nnot closely related to a controlling\nissue.\n\nE. Rule 1005: Public Records\nFederal Rule of Evidence 1005 covers public records and indicates\nthat \xe2\x80\x9c[t]he proponent may use a copy to prove the content of an\nofficial record \xe2\x80\x93 or of a document that was recorded or filed in a\npublic office as authorized by law \xe2\x80\x93 if these conditions are met: the\nrecord or document is otherwise admissible; and the copy is certified\n\n\x0cas correct in accordance with Rule 902(4) or is testified to be correct\nby a witness who has compared it with the original.\xe2\x80\x9d Rule 1005 also\nprovides that \xe2\x80\x9c[i]f no such copy can be obtained by reasonable\ndiligence, then the proponent may use other evidence to prove the\ncontent.\xe2\x80\x9d In other words, the proponent can introduce a properly\ncertified copy of a public record without accounting for the original,\nand, if a public record is lost or destroyed without bad faith or is not\navailable through any judicial process, the proponent may prove its\ncontents through secondary evidence, similar to the way that\nsecondary evidence can be offered pursuant to Rule 1004(a) and (b).\nHypothetical 15\nJames Phillips, a partner at a law firm, is charged with\nwillingly making a false statement to a federal agent and\nimmigration fraud. According to the prosecution, Phillips\nforged signatures on forms called \xe2\x80\x9cApplications for Alien\nEmployment Certifications\xe2\x80\x9d or \xe2\x80\x9cETA-750s,\xe2\x80\x9d the means by\nwhich foreign workers initiate the process to obtain an\nemployment-based visa from the United States Department\nof Labor. At trial, the prosecution seeks to introduce\nhandwritten copies of these ETA-750s, claiming that the\nUnited States Citizenship and Immigration Office in\nNebraska had such a high backlog of ETA-750 applications\nfollowing the Legal Immigration Family Equity Act deadline\nthat it was forced to ship many ETA-750s, including those\ncoming from Phillips\xe2\x80\x99 firm, to the Dallas office. The\nprosecution claims that these forms were not recoverable\nfrom the Dallas office before trial. Are the handwritten\ncopies admissible? See United States v. Phillips, 543 F.3d 1197\n(10th Cir. 2008).\n\n23\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1005. Public Records\n\nRule 1005. Copies of Public\nRecords to Prove Content\n\nThe contents of an official record, or\nof a document authorized to be\nrecorded or filed and actually\nrecorded or filed, including data\ncompilations in any form, if\notherwise admissible, may be proved\nby copy, certified as correct in\naccordance with rule 902 or testified\nto be correct by a witness who has\ncompared it with the original. If a\ncopy which complies with the\nforegoing cannot be obtained by the\nexercise of reasonable diligence, then\nother evidence of the contents may\nbe given.\n\nThe proponent may use a copy to\nprove the content of an official\nrecord \xe2\x80\x94 or of a document that\nwas recorded or filed in a public\noffice as authorized by law \xe2\x80\x94 if\nthese conditions are met: the\nrecord or document is otherwise\nadmissible; and the copy is\ncertified as correct in accordance\nwith Rule 902(4) or is testified to\nbe correct by a witness who has\ncompared it with the original. If no\nsuch copy can be obtained by\nreasonable diligence, then the\nproponent may use other evidence\nto prove the content.\n\nF. Rule 1006: Summaries\nFederal Rule of Evidence 1006 states that \xe2\x80\x9c[t]he proponent may use a\nsummary, chart, or calculation to prove the content of voluminous\nwritings, recordings, or photographs that cannot be conveniently\nexamined in court.\xe2\x80\x9d For this rule to apply, however, the proponent\nmust make the originals or duplicates \xe2\x80\x9cavailable for examination or\ncopying, or both, by other parties at a reasonable time and place. And\nthe court may order the proponent to produce them in court.\xe2\x80\x9d Rule\n1006 is thus not an exception to the rule that proponents must\nproduce originals or duplicates pursuant to Rules 1002 and 1003;\ninstead, it merely states that proponents who have already made\nlengthy originals or duplicates available for examination, copying, or\nboth can later prove their contents through charts, summaries, or\ncalculations. Finally, it is important to note that courts have found\nthat under Rule 1006, proponents merely must make the originals or\nduplicates available for examination and/or copying; no such\nobligation applies with regard to the charts, summaries, or\n\n\x0ccalculations admitted under the Rule. See, e.g., Colon-Fontanez v.\nMunicipality of San Juan, 2011 WL 4823189 at *8 (1st Cir. 2011)\n(\xe2\x80\x9cRegarding Col\xc3\xb3n\'s first argument, Rule 1006 provides that only the\nunderlying documents, not the summaries themselves, must be\nproduced to the opposing party.\xe2\x80\x9d)\nHypothetical 16\nMark Isaacs is charged with fraudulently using unauthorized\naccess devices. 15 months before trial, the prosecution\nprovides defense counsel with CDs containing underlying\ndata connecting Isaacs with the crime charged. Three days\nbefore trial, the prosecution provides defense counsel with a\nnew set of CDs containing the same underlying data. The\nprosecution produced this new set of CDs before trial\nbecause the earlier set of CDs contained extraneous and\ninadmissible information, and one set of data lists was\ndifficult to read. The new CDs contained 25,000 pages of\nunderlying data. At trial, the prosecution sought to introduce\nsummary exhibits created from the new sets of CD\xe2\x80\x99s.\nDefense counsel objects that the prosecution failed to comply\nwith Rule 1006. Is he correct? See United States v. Isaacs, 2010\nWL 252278 (7th Cir. 2010); Colin Miller, \xe2\x80\x9cReasonable Doubt:\nSeventh Circuit Finds That Data Disclosure Was Reasonable\nfor Rule 1006 Purposes.\xe2\x80\x9d EVIDENCEPROF BLOG, (Feb. 2,\n2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010/02/1\n006us-v-isaacs----f3d------2010-wl-252278ca7-ill2010.html.\n\n25\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1006. Summaries\n\nRule 1006. Summaries to Prove\nContent\n\nThe contents of voluminous\nwritings, recordings, or photographs\nwhich cannot conveniently be\nexamined in court may be presented\nin the form of a chart, summary, or\ncalculation. The originals, or\nduplicates, shall be made available\nfor examination or copying, or both,\nby other parties at reasonable time\nand place. The court may order that\nthey be produced in court.\n\nThe proponent may use a summary,\nchart, or calculation to prove the\ncontent of voluminous writings,\nrecordings, or photographs that\ncannot be conveniently examined in\ncourt. The proponent must make\nthe originals or duplicates available\nfor examination or copying, or\nboth, by other parties at a\nreasonable time and place. And the\ncourt may order the proponent to\nproduce them in court.\n\nG. Rule 1007: Admissions\nFederal Rule of Evidence 1007 allows for proof of the contents of a\nwriting, recording, or photograph \xe2\x80\x9cby the testimony, deposition, or\nwritten statement of the party against whom the evidence is offered.\xe2\x80\x9d\nAs an example, in Vigil v. Division of Child and Family Services, 107 P.3d\n716 (Utah Ct. App. 2005), an issue at the trial of David R. Vigil was\nwhether he possessed material harmful to a child in his home. At\ntrial, a detective gave testimony and introduced into evidence a report\nconcerning the contents of pornographic magazines and photographs\nseized from Vigil\xe2\x80\x99s house pursuant to a search warrant. Id. at 719. On\nappeal, Vigil claimed that the testimony and report violated the Best\nEvidence Rule because the magazines and photographs were not\nproduced. Id. The Court of Appeals of Utah rejected this argument,\nnoting that Vigil \xe2\x80\x9ctestified at trial that he had Playboy magazines and\nsome videotapes that could be considered pornographic in [his]\nhouse.\xe2\x80\x9d Id. Because Playboy magazine met the definition of material\nconsidered harmful to a child pursuant to the Division of Child and\nFamily Services Manual, the court found that Virgil had admitted the\ncontents of the seized items pursuant to Rule 1007, precluding any\nBest Evidence objection. Id.\n\n\x0cHypothetical 17:\nJoseph Koncel is on trial for first-degree murder and firstdegree kidnapping. After Koncel was arrested in connection\nwith these crimes, officers interrogated Koncel, who made\nseveral incriminatory statements. The interrogation was\nrecorded, but the prosecution only introduced a written\ntranscription of the audiotape of the interrogation at trial,\nrather than the audiotape itself. After he was convicted,\nKoncel appealed, claiming that he received the ineffective\nassistance of counsel because the transcript was inadmissible\nunder the Best Evidence Rule, yet his attorney failed to object\nto its admission. Koncel\xe2\x80\x99s attorney responds that, at the time\nthat the transcript was admitted, Koncel planned to testify,\nand the attorney believed that the substance of the statements\nin the transcript would be admitted through Koncel\'s own\ntestimony. Will Koncel be successful? See Koncel v. State, 2009\nWL 4842502 (Iowa Ct. App. 2009); Colin Miller, The Price of\nAdmission: Court of Appeals of Iowa\xe2\x80\x99s Best Evidence Ruling\nDepends Upon Rule 1007 but Doesn\xe2\x80\x99t Cite it.\nEVIDENCEPROF\nBLOG,\n(Jan.\n6,\n2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010\n/01/best-evidencekoncel-v-stateslip-copy-2009-wl-4842502tableiowa-app2009.html.\n\n27\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1007. Testimony or Written\nAdmission of Party\n\nRule 1007. Testimony or\nStatement of a Party to Prove\nContent\n\nContents of writings, recordings, or\nphotographs may be proved by the\ntestimony or deposition of the party\nagainst whom offered or by that\nparty\xe2\x80\x99s written admission, without\naccounting for the nonproduction of\nthe original.\n\nThe proponent may prove the\ncontent of a writing, recording, or\nphotograph by the testimony,\ndeposition, or written statement of\nthe party against whom the\nevidence is offered. The\nproponent need not account for\nthe original.\n\nH. Rule 1008: Functions of the Court and Jury\nFederal Rule of Evidence 1008 sets forth the respective functions of\nthe judge and the jury in applying the Best Evidence Rule. Rule 1008\nindicates that the judge must resolve preliminary issues of fact in\naccordance with Federal Rule of Evidence 104 while it is for the jury\nto determine whether \xe2\x80\x9c(a) an asserted writing, recording, or\nphotograph ever existed, or (b) another one produced at the trial or\nhearing is the original; or (c) other evidence of content accurately\nreflects the content.\xe2\x80\x9d The Advisory Committee specifically noted that\n\xe2\x80\x9cthe question whether the loss of the originals has been established,\nor of the fulfillment of other conditions specified in Rule 1004, supra,\nis for the judge\xe2\x80\x9d to resolve as a preliminary issue of fact.\nCommentators and judges have determined that the issue of whether\nthe party opposing the admission of a duplicate has raised a genuine\nquestion as to the authenticity of the original under 1003 is also a\npreliminary issue of fact to be resolved by the judge.\nHypothetical 18\nA former tenant sues Andrew Klopman, his former landlord,\nfor personal injuries connected to exposure to lead paint at\nthe property the tenant rented from Klopman. Klopman\nbrings a declaratory judgment action against Zurich American\nInsurance Company of Illinois, seeking a declaration that the\ninsurance company is obligated to defend and indemnify him\n\n\x0cin the lead paint lawsuit pursuant to his insurance policy. The\ninsurance company claims that it never issued such an\ninsurance policy to him, and Klopman claims that the\ninsurance policy was destroyed in a basement flood, meaning\nthat he can testify about the contents of the policy pursuant\nto Rule 1004(a). The action proceeds to a jury trial. Who\ndecides whether the insurance company issued a policy to\nKlopman, the judge or the jury? Cf. Klopman v. Zurich American\nIns. Co. of Illinois, 233 Fed. App\xe2\x80\x99x. 256 (4th Cir. 2007).\nHypothetical 19\nGary Hermsdorf is charged with Medicaid fraud based upon\nbilling the New Hampshire Division of Health and Human\nServices as if brand-name drugs had been dispensed when he\nin fact dispensed generic drugs to customers. Undercover\nmembers of the New Hampshire Attorney General\xe2\x80\x99s\nMedicaid Fraud Control Unit bought drugs from Hermsdorf,\nand an investigator with the Unit took notes regarding\nwhether the labels on those drugs classify the drugs as brand\nname or generic and compares those notes with the bills\nsubmitted by Hermsdorf. At Hermsdorf\xe2\x80\x99s jury trial, the\nprosecution seeks to admit the notes under Rule 1004(a),\nclaiming that it lost the original labels in good faith.\nHermsdorf counters that the labels were lost in bad faith.\nWho decides the question of whether the notes are\nadmissible, the judge or the jury? See State v. Hermsdorf, 605\nA.2d 1045 (N.H. 1992).\n\n29\n\n\x0cPrior Rules Language:\n\nRestyled Rules Language:\n\nRule 1008. Functions of Court\nand Jury\n\nRule 1008. Functions of the\nCourt and Jury\n\nWhen the admissibility of other\nevidence of contents of writings,\nrecordings, or photographs under\nthese rules depends upon the\nfulfillment of a condition of fact, the\nquestion whether the condition has\nbeen fulfilled is ordinarily for the\ncourt to determine in accordance\nwith the provisions of rule 104.\nHowever, when an issue is raised (a)\nwhether the asserted writing ever\nexisted, or (b) whether another\nwriting, recording, or photograph\nproduced at the trial is the original,\nor (c) whether other evidence of\ncontents correctly reflects the\ncontents, the issue is for the trier of\nfact to determine as in the case of\nother issues of fact.\n\nOrdinarily, the court determines\nwhether the proponent has\nfulfilled the factual conditions for\nadmitting other evidence of the\ncontent of a writing, recording, or\nphotograph under Rule 1004 or\n1005. But in a jury trial, the jury\ndetermines \xe2\x80\x94 in accordance with\nRule 104(b) \xe2\x80\x94 any issue about\nwhether:\n(a) an asserted writing,\nrecording, or photograph ever\nexisted;\n(b) another one produced at the\ntrial or hearing is the original; or\n(c) other evidence of content\naccurately reflects the content.\n\nI. The Best Evidence Framework\nArticle X, consisting of Rules 1001-1008, thus sets up the following\nframework for how a party can prove the contents of a writing,\nrecording, or photograph. First, if the party produces the original at\ntrial, it can introduce it consistent with Federal Rule of Evidence\n1002. Second, if the party does not have the original, it can introduce\na \xe2\x80\x9cduplicate\xe2\x80\x9d that satisfies Federal Rule of Evidence 1003, even if it\ncannot account for its nonproduction of the original; alternatively, if\nthe original is a public record, the party can introduce a certified copy\nin compliance with Rule 1005. Third, if the party cannot produce the\noriginal or a \xe2\x80\x9cduplicate,\xe2\x80\x9d but it can account for the nonproduction of\nthe original under Rule 1004(a), (b), or (c), it can prove its contents\nthrough any type of secondary evidence; moreover, if the party can\nprove that the original is not closely related to a controlling issue, it\n\n\x0ccan do the same under Rule 1004(d). Furthermore, if the original is a\npublic record, and the party cannot obtain a certified copy of it, the\nparty can prove its contents through secondary evidence pursuant to\nRule 1005. Fourth, if the party does not produce the original or a\n\xe2\x80\x9cduplicate\xe2\x80\x9d and cannot account for the original\xe2\x80\x99s nonproduction, it\nmay still be able to prove its contents through admissions by the\nopposing party under Rule 1007.\nJ. Best Evidence Pleadings\nSome concise examples of motions connected to evidence sought to\nbe admitted or excluded under the Best Evidence Rule can be found\nat:\n\xef\x82\xb7\n\nAutochina Limited v. Huang, 2009 WL 5566956 (S.D. Fla. 2009)\n(motion in limine);\n\n\xef\x82\xb7\n\nAutochina Limited v. Huang, 2009 WL 5566960 (S.D. Fla. 2009)\n(response to motion in limine); and\n\n\xef\x82\xb7\n\nAutochina Limited v. Huang, 2009 WL 5566949 (S.D. Fla. 2009)\n(reply to response to motion in limine).\n\n31\n\n\x0c'