Topics: Appellate Review

Underlying materials need not be introduced or produced in court

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Underlying materials need not be introduced or produced in court.

The underlying materials need not be introduced in evidence, and the rule provides that whether to require that they be produced in court is a matter of the court's discretion.

Voluminousness. "Rule 1006 does not require that it be literally impossible to examine all the underlying records, but only that in-court examination would be an inconvenience.

Example—Admissible. "In the present case, the district court did not err in admitting the summaries. The government's evidence was incredi­bly voluminous, and it would have been incomprehensible to the jury without summarization.”

A. Tenant sues Landlord for breaching the terms of their lease. The Tenant testifies that the lease requires the Landlord to pay for all appliance repairs costing more than $50, but the tenant does not produce the lease at trial. The Landlord objects to the tenant’s oral testimony on best evidence grounds. Is the testimony admissible? (S&S 1)
B. Tenant testifies that he had to have his refrigerator repaired at a cost of $200 and that the landlord failed to reimburse him. Can the Tenant offer that oral testimony about the cost of the repairs without the repair bill being introduced? (S&S 2)
D. Can a witness testify that the defendant in an assault and battery criminal case hit a victim on the head with an aluminum “Demarini” softball bat without introducing the bat? (Best 8-5) “Demarini” is the brand name printed on the bat.
E. An undercover police officer secretly tape-recorded a conversation with the defendant who is now on trial charged with selling illegal drugs to the officer. The officer is about to testify in court to what the defendant said during the alleged sale. The defense lawyer, who knows about the tape recording, objects on the grounds that the tape is the best evidence. (Best 8-1) Is the officer's oral testimony barred?

6. In trial where D is charged with selling child pornography, Officer testifies about what was shown in the photos that were sold by D. D objects citing the best evidence rule. Is the Officer's testimony admissible?
7. To prove that Walter Watkins was in Honolulu last April 5th, Buddy testifies that he and Watkins took a sunset cruise together. Buddy offers a duplicate of a photograph taken by another friend while all three were aboard ship. Is the duplicate admissible.
8. D, who was a witness in a prior trial, is now charged with perjury based upon his testimony in the prior trial. To prove what D's former testimony was at a prior trial, a courtroom spectator from the first trial is called to testify about what D's testimony was during the trial. D's lawyer objects claiming that the best evidence rule requires a transcript of the first trial. What result?
9. Bank robbery prosecution. A photograph of the robber is taken by a hidden surveillance camera. The bank security officer, who was not present at the time of the robbery, testifies that he removed the film from the camera after the robbery, supervised its development, and examined the photograph that was produced. He offers to testify that the person shown in the photograph robbing the bank is the defendant who is sitting in court. The photograph is not offered into evidence. D objects on best evidence grounds. What ruling? (MK 14 F, 990)

11. P owns commercial property. P sues D, a commercial tenant, for back rent on the commercial building. D's only witness is Andrea Accountant. Andrea is a new employee who did not work for D during the time D claims to have made the rent payment. Andrea reviewed the company's books, checks, and receipts and is prepared to testify that the company made the rent payment. Andrea does not offer the books, checks, or receipts. P objects on best evidence grounds. What result? Why?

12. The Unlisted Number. Charge: knowingly transporting a stolen vehicle in interstate commerce. At trial, D concedes that the automobile was stolen at the time of interstate transport but denies that he knew it was stolen. The government's first witness, W, an FBI agent, testified that at the time of arrest, D told him that he had bought the automobile from “Bill Holt” of “Bill Holt's Body Shop” on the west side of Chicago. The agent also attempted to testify that he had checked the Chicago telephone directory for the area and that there was no listing for “Bill Holt,” “Bill Holt's Body Shop,” “Bill Holdt,” “Bill Hult,” or any other reasonable spelling variation of those names. D objected to the agent's testimony on grounds of Rule 1002. The court ruled that the rule does not apply to testimony that books or records have been examined and found not to contain any reference to a designated matter. Is the court's ruling correct? (G 997)
13. The Tax Evader. Brad Trimble is prosecuted for alleged tax evasion, and the government calls Charles Urban, an IRS accountant to testify. Urban has examined Trimble's bank records, which reflect more than 90 deposits and 300 withdrawals over the year, and the prosecutor offers (1) Urban's testimonial summary of deposits and disbursements from the account and (2) a chart prepared by Urban from the bank records summarizing entries deemed significant from the prosecutor's perspective. Trimble raises a Best Evidence objection, but the prosecutor invokes FRE 1006. What result, and why? (MK 1002)
16. Action for infringement of computer trade secrets. Plaintiff offers into evidence a printout of its software source code that was created from the disk on which the software resides. The printout is offered so it can be compared line-for-line with a printout of Defendant’s software. Defendant objects under Rule 1002 to the printout of Plaintiff’s software. How should the court rule? (LG63/6)

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