Comments:
- 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;
or - 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- (prejudicial/outside influence) blurred line, examples are consulting books/newspapers, information on Internet superseded indictment, conducted experiment or investigation, jurors discussed prior conviction of defendant that had not been admitted into evidence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
- “Writing”: letters, words, numbers, or equivalent set down in any form
- “Recording”: ^ same but recorded in any manner
- “Photograph”: photographic image or its equivalent stored in any form
- “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.
- For electronically stored information, “original” means any printout- or other output readable by sight, if it accurately reflects the information.
- “Original” photograph includes the negative or a print from it”
- “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:
- 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
- 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)
- 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:
- All the originals are lost and destroyed, and not by the proponent acting in bad faith;
- Intentional destruction doesn’t necessarily it was in bad faith.
- I.E. – negligent, regular course of business destruction is fine.
- An original cannot be obtained by any available judicial process;
- 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
- I.E. – prosecution for robbery put defendants on notice that serial numbers of stolen “bait bills” would be subject of proof at trial
- The writing, recording, or photograph is not closely related to a controlling issue
- I.E. – Plaintiffs could establish their standing as aggrieved owners in a zoning case by their testimony, without producing title instruments
- 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
- If any are met → proponent can prove contents by any means of secondary evidence he chooses