Evidence Slides 13: Rules 901-1008

[How could a witness violate Rule 901?]

Q. What happened next?
A: I received an unexpected phone call from a man that night. I did not recognize the voice. I do not know what number he was calling from. He was not returning a message that I had sent to anyone. But he said "I'm Rick James."

Is this enough for authentication??
Click the card to flip 👆
1 / 14
Terms in this set (14)
[How could a witness violate Rule 901?]

Q. What happened next?
A: I received an unexpected phone call from a man that night. I did not recognize the voice. I do not know what number he was calling from. He was not returning a message that I had sent to anyone. But he said "I'm Rick James."

Is this enough for authentication??
(idk if this is right)
901 requires more than mere self-authentication? But doesn't take much. Example "I'm Rick James" not good enough?
In a criminal case, the defendant is accused of "assault with a deadly weapon." To prove it was a deadly weapon, the prosecutor calls a police officer who will testify:
"When I arrived, the defendant was hitting his victim with a piece of wood. I immediately arrested him, and took that weapon away from him. I did not bring it with me to court, and left it back at the station. But if there is no objection, I will describe the size and shape of the weapon to the best of my ability."
The Defense Lawyer: Objection. They need to produce the original exhibit. It would be the best evidence for the jury to consider.

Why is this scenario not a violation of the Best Evidence Rule?
Because it doesn't apply to weapons—applies to writings, recordings, or photographs; not every exhibit.
Q. What is your name?
A. I am Bob Cratchit. I work as a clerk for Mr. Scrooge.
Q. Can you tell us how much rent Mr. Scrooge is owed by the defendant in this case?
A. Yes. I checked the original accounts last night, and carefully copied those figures by hand onto this pile of papers I brought with me here today.
Defense counsel: Objection, your Honor. Best evidence rule.

Ruling?
Sustained; this is an example of a hand copy.
Q. Did you learn anything from the wiretap, officer?
A. Yes, we did. The device made a recording of every call to the apartment, including one call that came in on June 4. I did not bring the original tape, but my secretary copied that tape onto this digital file, which I can play for the jury now.
Defense counsel: Objection, your Honor. Best evidence rule.

Is this permissible?
Overruled; this is a duplicate (not produced by hand but by mechanical system). Under 1003 duplicates are regarded as originals.
Q. Did you learn anything from the wiretap, officer?
A. Yes, we did. The device made a recording of every call to the apartment, including one call that came in on June 4. I did not bring the tape, but my secretary typed up this verbatim transcript of the tape recording, and we have both double checked its accuracy word for word.
Defense counsel: Objection, your Honor. Best evidence rule.

Is this permissible?
Sustained; not a duplicate because it was created by a human being. It's secondary evidence of the contents of a recording being offered to prove its contents.


[for later: Hearsay only applies if using to offer proof of truth of matter asserted. ]
Q. What did you pay for the hammer?
A. Exactly ten dollars, plus tax.
Opposing counsel: Objection, your Honor. Best evidence. He is telling the jury what was written in the receipt. They need to produce the original.

Ruling?
Overruled.
Q. Why was that day so memorable for you?
A. It was my wedding day, and the same day my father suddenly died during the wedding reception.
Opposing counsel: Objection, your Honor. Best evidence. They need to produce the marriage license and the death certificate.

Ruling?
Overruled; if testimony is allowed, even if it has indirect relation to wedding certificate, wedding of video, death certificate, etc, Rule only applies if trying to prove contents of a writing, recording, or photograph...
Q. What happened next, Officer?
A. The defendant told me that he wanted to waive his rights, and he then gave me a detailed oral confession to the crime. I made a video and audio recording of his statement, and also took detailed notes, but did not bring any of those with me today. But I can tell you what I remember if that is okay.
Defense counsel: Objection, your Honor. The video would be the best evidence.

Ruling?
overruled... Cop learned independently of recording mechanisms;
Not being offered to tell the jury what they would see if they saw the video.
Q. What happened next, Officer?
A. The defendant told me that he wanted to waive his rights, and he then silently gave me a detailed written confession to the crime. I did not bother to bring it with me today. But I can tell you what I remember if that is okay.
Defense counsel: Objection, your Honor. The written document would be the best evidence.

Ruling?
Sustained; Being used to prove contents of the writing.
Q. What happened next, Officer?
A. While I was out of the room, the defendant made a statement to the other officers. I was not there, but I have heard a recording of that statement. I can tell you what I remember if that is OK.
Defense counsel: Objection, your Honor. Best evidence.

Ruling?
Sustained; he's telling jury what he learned when he listened to the recording.
Q. This is plaintiff's exhibit one, the contract. Can you please explain your obligations under this document as you understood them? Defense counsel: Objection, your Honor. Best evidence. His "understanding" is merely secondary evidence of the contents of the contract. The document speaks for itself. What is a better objection?403.. almost always get the judge to say the whole contract being read would be a huge waste of time.Q. Did you learn anything from the wiretap, officer? A. Yes, we did. The device made a recording of every call to the apartment, including one call that came in on June 4. My secretary typed up this verbatim transcript of the tape recording, and we have both double checked its accuracy word for word. Defense counsel: Objection, your Honor. Best evidence rule. Is this permissible?Yes! If the original is produced in court, you cannot violate the Best Evidence Rule by offering other evidence of its contents.Q. How did you first meet your wife? A. Thirty years ago, when we were in third grade together, she slipped me a note in class one day that said "I think you're cute." Defense counsel: Objection, your Honor. Best evidence rule. He is quoting the document. Is it a violation of the BER?Nope; The Rule only applies if the writing or recording is "closely related to a controlling issue." It does not apply to the many writings in every case that are merely "collateral." FRE 1004(4)Q. How did you first come to work for the defendant? A. About three years ago, I saw an ad in the paper that said they were looking for workers, so I went down and applied for a job. Defense counsel: Objection, your Honor. Best evidence rule. They need to produce that newspaper. Violation of BER?Nope; The Rule only applies if the writing or recording is "closely related to a controlling issue." It does not apply to the many writings in every case that are merely "collateral." FRE 1004(4)