Evidence · Best Evidence

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MBE Evidence: Best Evidence

Explore key principles and rules regarding the Best Evidence Rule as tested on the Multistate Bar Examination (MBE).

Overview

The Best Evidence Rule requires parties to produce the original document or a reliable duplicate when the contents of a writing are at issue. This rule ensures accuracy in evidence presentation and seeks to avoid potential distortions that can arise from secondary evidence. The rule applies not only to writings but also to recordings, photographs, and other tangible forms of communication where the original is necessary to assess content accurately. Under the MBE, understanding the exceptions to this rule is critical, as the use of secondary evidence is permissible under certain circumstances, such as when the original is lost, destroyed, or not accessible.

In analyzing Best Evidence Rule questions, examine the materiality of the document in question, whether a legitimate basis for using secondary evidence exists, and distinguish between the different types of evidence. The implications of the Best Evidence Rule can significantly impact the admission and weight of evidence, necessitating a thorough understanding of both the rule and its exceptions in preparation for the MBE.

Key Rules
  1. The Best Evidence Rule requires the original document when the contents are in dispute.
  2. Secondary evidence is admissible if the original is unavailable due to loss, destruction, or not being in the party's possession.
  3. Duplicates are admissible as originals unless there is a valid reason to dispute their credibility.
  4. Documents, recordings, and photographs are all included under the Best Evidence Rule.
  5. The rule does not apply if the evidence is not regarding the content of the writing.
Common Question Patterns
  • Assessing the admissibility of a copy of a document when the original is not available.
  • Determining whether a party has met the requirements for admissibility of secondary evidence.
  • Analyzing fact patterns involving lost or destroyed documents.
Practice Questions

1. A party intends to introduce a copy of a signed contract as evidence in a breach of contract case. The original contract was lost in a flood. Is the copy admissible?

A. A) Yes, because copies are always admissible.

B. B) No, because the original is required.

C. C) Yes, because the original is not available.(Correct)

D. D) No, unless the signer testifies to its contents.

Explanation: The copy is admissible because the original is not available due to loss.

2. In a criminal trial, the prosecution wishes to introduce a video recording of the defendant's actions. However, they lost the original video file. They have a copy of the video that they obtained from a backup. Can they use the copy as evidence?

A. A) Yes, if the backup was made in the normal course of business.(Correct)

B. B) No, the original must be produced.

C. C) Yes, because the video is not contested.

D. D) No, unless they can show the backup was of good quality.

Explanation: The copy is admissible because it was made in the normal course of business and is reliable.

3. During a civil trial, a party presents witness testimony regarding the contents of a diary that the opposing party claims is protected as a privilege. Is this admissible without the original diary being presented?

A. A) Yes, because witness testimony can affirm contents.

B. B) No, the Best Evidence Rule requires the original diary.(Correct)

C. C) Yes, if the witness had personal knowledge of the diary.

D. D) No, unless the original was destroyed.

Explanation: The Best Evidence Rule requires the original diary to determine its content because the diary’s authenticity is at issue.

4. If a document that is critical to a case is destroyed by the opposing party before trial, what impact does this have on their obligation under the Best Evidence Rule?

A. A) They can still use a copy of the document.(Correct)

B. B) They cannot use any evidence regarding the document.

C. C) They must prove the document’s content through other means.

D. D) They are excused from producing the document altogether.

Explanation: If the document is destroyed by the opposing party, a copy can be used as evidence to prove its content.

5. A defendant wants to admit a written confession that is not signed, arguing that it is still authentic. The prosecution argues that the Best Evidence Rule requires the signed original. What is the likely outcome?

A. A) The confession is admissible regardless of whether it is signed.

B. B) The confession is admissible only if a witness testifies to its authenticity.

C. C) The confession is not admissible because it lacks a signature.

D. D) The admissibility depends on the reliability of the confession.(Correct)

Explanation: The admissibility depends on the reliability of the confession and the circumstances under which it was created.

Test-Taking Tips
  • Always identify whether the contents of a document are in dispute to determine the applicability of the Best Evidence Rule.
  • Remember the exceptions to the rule when considering the admissibility of secondary evidence.
  • Be cautious of the language used in exam questions that may hint at the document's status as original or duplicate.

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