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Best Evidence Rule Case Western Reserve University School of Law Scholarly Commons Faculty Publications 1991 Best Evidence Rule Paul C. Giannelli Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Evidence Commons, and the Litigation Commons Repository Citation Giannelli, Paul C., "Best Evidence Rule" (1991). Faculty Publications. 511. https://scholarlycommons.law.case.edu/faculty_publications/511 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. p'yjJ., ~ 7 r Y: /.,'- c/.) f1AR 0 8 1991 Vol. 14, No. 1 Winter 1991 BEST EVIDENCE RULE Paul C. Giannelli Albert J. Weatherhead Ill & Richard W. Weatherhead >- Professor of Law, Case Western ReseNe University 0::: ~ Article X of the Ohio Rules of Evidence sets forth the Proving the Contents of a Writing requirements of the "best evidence" rule. Rule 1002 The rule applies only when a party attempts to prove CO states the rule- to prove the contents of a writing, recording the contents of a writing or recording. Some events and ....J or photograph, the original must be introduced at trial transactions, such as those involving deeds, cont;acts, > unless a statute or another rule recognizes an exception. and judgments, are essentially written transactions, and > Rules 1003 to 1007 specify exceptions. Rule 1002 must the rule requires production of the original writing. See ::5 be read in conjunction with Rule 1001, which_d~fines the Toledo v. Tucker, 99 Ohio App. 346, 133 N.E.2d 411 (1954) terms writing, recording, photograph, and ongmal. (testimony regarding contents of agency regulation :J Rule 1002 is consistent with prior Ohio law. See inadmissible). 0:::: Gennaro Pavers, Inc. v. Kosydar, 42 Ohio St.2d 491, 330 The rule, however, does not apply when the event ?: N.E. 665 (1975); Sinks v. Reese, 19 Ohio St. 306 (1869); sought to be proved existed independently of a writing. U Hine v. Dayton Speedway Corp., 20 Ohio App.2d 185, For example, if an accused makes an oral confession 187, 252 N.E.2d 648 (1969); City Club of Toledo, Inc. v. which is recorded or subsequently reduced to writing, Board of Liquor Control, 3 Ohio App.2d 339, 341, 210 the rule does not require the production of the recording N.E.2d 726, 728 (1964) ("Secondary evidence is never or writing. The prosecution is not attempting to prove the admitted unless it is made manifest that that which is contents of the recording or writing, but rather the better cannot be obtained."). independent event (oral confession) that happened to be recorded. See also State v. James, 41 Ohio App.2d 248, 325 N.E.2d 267 (1974) (telephone conversation could be APPLICATION OF RULE proved by testimony of person who received call or by Rule 1002 applies only to writings, recordings, and tape recording of the call); American Security Service, photographs, and then only when a party seeks to prove Inc. v. Baumann, 32 Ohio App.2d 237,289 N.E.2d 373 their contents. There is no general rule requiring the (1972) (account could be proved by testimony of witness­ "best evidence." For example, a party may offer testimo­ es or by records); McCormick, Evidence§ 233 (3d ed. ny describing an object without being required to offer 1984) ("evidence of a payment may be given without the actual object into evidence. See United States v. production of the receipt, or evidence of a marriage with­ Figueroa, 618 F.2d 934, 941 (2d Cir. 1980)(heroin); Chan­ out production of the marriage certificate."). The trial dler v. United States, 318 F.2d 356, 357 (10th Cir. court, however, has authority to require production of the 1963)(whiskey jars); Holle v. State, 26 Md. App. 267, 274, writing or recording pursuant to Rule 611(A), which 337 A.2d 163, 166 (1975)(stolen marked currency). recognizes the court's general authority to control the Thus, a more apt description of the rule is the "original presentation of evidence. writing" rule. See McCormick, Evidence§ 229 (3d ed. The original document rule also applies where a party 1984). The Ohio cases are in accord. See State v. chooses to introduce a writing to prove a fact that could Maupin, 42 Ohio St.2d 473, 330 N.E.2d 708 (1975) (best be proved without the writing. Thus, in the confession evidence rule does not apply to physical evidence); . example cited above, if the prosecution chose to use a Napolet v. Board of liquor Control, 67 Ohio Abs. 108, 119 writing to prove the confession, it would have to offer the N.E.2d 93 (App. 1953). original writing. A copy of the writing or testimony by a The special nature of writings gives rise to their being witness who read the written confession would be inad­ singled out for application of this rule. The copying of a missible unless the original was unavailable. writing is especially susceptible to the introduction of inaccuracies, and even a minor inaccuracy may have The Advisory Committee's Note to Federal Rule 1002 significant legal consequences. See 4 Wigmore, contains the following comment: Evidence§ 1181 (Chadbourn rev. 1972). Application of the rule requires a resolution of the Public Defender Hyman Friedman Telephone (216) 443-7223 Cuyahoga County Public Defender Office, 1200 Ontario Street, Cleveland, Ohio 44113 The views expressed herein are those of the author and do not necessarily reflect those of the Public Defender. Copyright @ 1991 Paul Giannelli question whether contents are sought to be proved. to include X-ray films, video-tapes, and motion pictures. Thus an event may be proved by nondocumentary The Advisory Committee's Note to Federal Rule 1001 evidence, even though a written record of it was made. comments: If, however, the event is sought to be proved by the Traditionally the rule requiring the original centered written record, the rule applies. For example, payment upon accumulations of data and expressions affecting may be proved without producing the written receipt legal relations set forth in words and figures. This which was given. Earnings may be proved without meant that the rule was one essentially related to writ­ producing books of account in which they are entered. ings. Present day techniques have expanded methods McCormick§ 198; 4 Wigmore§ 1245. Nor does the rule of storing data, yet the essential form which the infor­ apply to testimony that books or records have been mation ultimately assumes for usable purposes is examined and found not to contain any reference to a words and figures. Hence the considerations underly­ designated matter. ing the rule dictate its expansion to include computers, photographic systems, and other modern developments. Photographs Rule 1002 provides that the original photograph is Originals required to prove the contents of the photograph. Rule Rule 1001(3) defines an original as the writing or 1001(2) defines photographs to include X-ray films, video­ recording itself or any "counterpart intended to have the tapes, and motion pictures. In most cases, however, same effect by a person executing or issuing it." Hence, photographs are not offered to prove their contents. The the test for determining whether a counterpart is an origi­ Advisory Committee's Note to Federal Rule 1002 explains: nal is the intent of the person executing or issuing the The assumption should not be made that the rule writing or recording. This represents a change in Ohio will come into operation on every occasion when use is law. See Chrismer v. Chrismer, 103 Ohio App. 23, 144 made of the photograph in evidence. On the contrary, N.E.2d 494 (1956) (carbon copy not separately executed the rule will seldom apply to ordinary photographs. In is not an original); Comment, Duplicate Originals and the most instances a party wishes to introduce the item Best Evidence Rule, 19 Ohio St. L.J. 520 (1958). and the question raised is the propriety of receiving it Rule 1001(3) contains a specific provision on computer­ in evidence. Cases in which an offer is made of the testimony of a witness as to what he saw in a photo­ generated writing: "any printout or other output readable graph or motion picture, without producing the same, by sight, shown to reflect the data accurately, is an 'origi­ nal.'" See Touche Ross & Co. v. Landskroner, 20 Ohio are most unusual. The usual course is for a witness on App.3d 354, 356,486 N.E.2d 850, 852 (1984). the stand to identify the photograph or motion picture as a correct representation of events which he saw or The Advisory Committee's Note to Federal Rule 1001 of a scene with which he is familiar. In fact he adopts contains the following comment: the picture as his testimony, or, in common parlance, In most instances, what is an original will be self­ uses the picture to illustrate his testimony. Under these evident and further refinement will be unnecessary. circumstances, no effort is made to prove the contents However, in some instances particularized definition is of the picture, and the rule is inapplicable. Paradis, The required. A carbon copy of a contract executed in Celluloid Witness, 37 U.Colo.L.Rev. 235, 249-251 (1965). duplicate becomes an original, as does a sales ticket On occasion, however, situations arise in which carbon copy given to a customer. While strictly speaking contents are sought to be proved. Copyright, defama­ the original of a photograph might be thought to be only tion, and invasion of privacy by photograph or motion the negative, practicality and common usage require that picture falls in this category.
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