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Evidence Outline - Professor Tilly - Campbell Law - Part 2

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

<< Part 1 | Part 3 >>

FRE 603. Oath or Affirmation to Testify Truthfully: Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

  • Oath is deity related, affirmation is not- doesn’t matter which form it comes in
    • Ie- atheist can say “I do not believe that god will punish me if I lie today” and that may be fine.


  • If witness objects on religious grounds to taking either oath or affirmation, court can come up w/ alternative form of “serious public commitment to answer truthfully that does not transgress the prospect’s sincerely held beliefs
    • Acceptable alternative: “Do you affirm to speak with fully integrated honesty, only with fully integrated honesty and nothing but fully integrated honesty?”
    • Unacceptable: “I am a truthful man” and “I would not tell a lie to stay out of jail” testimony was properly excluded after witness refused to affirm: “I state that I will tell the truth in my testimony”
Other Miscellaneous Federal Rules for Competency
  • 604: Interpreter must be qualified and must give an oath or affirmation to make a true translation
  • 605: Presiding judge may not testify as a witness at trial. Party need not object to preserve the issue.
  • 606: Juror may not testify as a witness before the other jurors at the trial.
    • During inquiry of validity of verdict or indictment- can’t testify about anything that happened in deliberation, mental processes etc. Exceptions:
      • Extraneous prejudicial information was improperly brought to the jury's attention
      • An outside influence was improperly brought to bear on any juror;
      • A mistake was made in entering the verdict on the verdict form
    • (prejudicial/outside influence) blurred line, examples are consulting books/newspapers, information on Internet superseded indictment, conducted experiment or investigation, jurors discussed prior conviction of defendant that had not been admitted into evidence
      • 6A trumps this rule when a juror seeks to testify about overt racial bias in the deliberation of a criminal case
II. Best Evidence of Writings, Recordings & Photographs

FRE 1001. Definitions

  1. “Writing”: letters, words, numbers, or equivalent set down in any form
  2. “Recording”: ^ same but recorded in any manner
  3. “Photograph”: photographic image or its equivalent stored in any form
  4. “Original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it.
    1. For electronically stored information, “original” means any printout- or other output readable by sight, if it accurately reflects the information.
    2. “Original” photograph includes the negative or a print from it”
  5. “Duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
    • I.E. – of counterpart- 5 parties all have their own copies of lease agreements

FRE 1002. Best Evidence Rule: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise

ONLY APPLIES in two situations:

    1. a writing is itself the thing to be proved; or
      • I.E. – contract dispute
        • But- “did you sign a will?” would be fine b/c not about content, just existence
        • Courts typically find “date” of writing is fine without the best evidence as well
    2. a party seeks to prove a matter by using a writing as evidence of it
      • I.E. – witness’s description of GPS monitoring display showing location and movements of a boat b/c the display was a “writing” and the testimony was offered to prove the contents (location and movement of the boat)
    3. Party still able to prove non-writing event although writing exists that happens to record the event
      • I.E. – person can testify to hearing oral communication even though recorded tape of conversation exists
        • But if witness’s knowledge is derived from such records → his testimony in lieu of the records violates the rule
          • I.E. – if cashier is robbed and it was also captured on camera → cashier can testify about the robbery without the film being an issue
            • But - if the manager is testifying and didn’t see the actual robbery (watched it on film) → need that film
      • Rule does not apply to testimony that written records have been examined and found not to contain a certain matter (absence of biz rec/public rec after diligent inspection)
  • US v. Smith, ATF agent testifying for gov. Trying to establish interstate commerce element, testifies to the fact that guns were produced at certain place using certain logs as his reference guide
    • BER rule not violated b/c only referenced the fact itself- not the content of the logs
    • Defense should have objected to lack of personal knowledge instead (agent was not an expert witness)
“Original” Exceptions to Best Evidence Rule

*Exceptions to the Best Evidence Doctrine:

FRE 1003. Admissibility of Duplicates. A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate

  • Original’s authenticity: I.E. – if case presents jury Q about whether original document is forged, proponent should not use a duplicate if he is in a position to produce the original
  • Re-writing is NOT a duplicate
    • But- screenshotting is
      • Remember- “mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original”

FRE 1004. Admissibility of Other Evidence of Content: An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

  1. All the originals are lost and destroyed, and not by the proponent acting in bad faith;
    1. Intentional destruction doesn’t necessarily it was in bad faith.
      1. I.E. – negligent, regular course of business destruction is fine.
  2. An original cannot be obtained by any available judicial process;
  3. The party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
    1. I.E. – prosecution for robbery put defendants on notice that serial numbers of stolen “bait bills” would be subject of proof at trial
  4. The writing, recording, or photograph is not closely related to a controlling issue
    1. I.E. – Plaintiffs could establish their standing as aggrieved owners in a zoning case by their testimony, without producing title instruments
      1. Party could examine own witness about contents of a flyer about the case, without producing the flyer, to show how witness learned of the case and came to testify
  5. If any are met → proponent can prove contents by any means of secondary evidence he chooses
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