#9136 - Article 10 Contents Of Writings Recordings And Photographs - Evidence

ARTICLE X: CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:

• FRE 1001: Definitions:

  • FRE 1001(1): Writings and recordings: consist of letters, words, or numbers, of their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation

  • FRE 1001(2): Photographs: include still photographs, x-ray films, video tapes, and motion pictures

  • FRE 1001(3): Original: An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.

    • An “original” of a photograph includes the negative and any print therefrom

    • If data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”

  • FRE 1001(4): Duplicate: A “duplicate” is a counterpart produced by: the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

• FRE 1002: Requirement of Original (Best Evidence Rule): To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required

  • Except as otherwise provided by FRE or statute

    • United States v. Duffy: Shirt with laundry mark “DUF” was found in D’s car. Shirt is both a chattel and a writing, thus could be treated as either. Words merge with object.

      • Here, because writing was simple, little danger that witness would inaccurately remember its terms

      • Terms of writing not central or critical to case against Duffy; shirt was one piece of evidence in a substantial case against Duffy

    • Meyers v. United States: In a trial for perjury, it was acceptable to call counsel at original hearing to testify as to what D said. Transcript of hearing not required.

      • Counsel’s testimony about what he heard was not an attempt to prove what a writing—the transcript—said.

      • Counsel’s testimony was equally competent as transcript to prove what D said at proceeding

• FRE 1003: Admissibility of Duplicates: A duplicate is admissible to the same extent as an original unless:

  • FRE 1003(1): a genuine question is raised as to the authenticity of the original OR

  • FRE 1003(2): in the circumstances it would be unfair to admit the duplicate in lieu of the original

    • Turnage v. State: It was acceptable to admit copies of tapes of phone calls D made at county workhouse.

      • Although witness did not compare digital copies to analog originals, there is no genuine question of authenticity of the copies

        • Seven foundational elements that must be established before a tape recording can be admitted (as a supplement to FRE 1003):

          • Showing that the recording device was capable of taking testimony

          • Showing that the operator of the device was competent

          • Establishment of the authenticity and correctness of the recording

          • Showing that changes, additions, and deletions have not been made

          • Showing of the manner of the preservation of the recording

          • Identification of the speakers

          • Showing that the testimony elicited was voluntarily made without any kind of inducement

• FRE 1004: Admissibility of Other Evidence of Contents: The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

  • (1) Originals lost or destroyed: Unless the proponent lost or destroyed them in bad faith

  • (2) Original not obtainable: by any available judicial process or procedure

  • (3) Original in possession of opponent: At time when original was under control of party against whom offered, party was put on notice that contents would be a subject of proof at hearing and party does not produce original at hearing

  • (4) Collateral matters: Writing, recording, or photograph is not closely related to a controlling issue

• FRE 1005: Public records: Contents of official record, or of document authorized to be recorded or filed and actually recorded or...