The Best Evidence Rule, and illustrative examples

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The Best Evidence Rule ("BER") is always tested on the MBE. Usually, only one question on the MBE is focused on this issue. Though it is not a high value subject area like negligence, which typically has 4 or more questions, there is no good reason to miss a question on the Best Evidence Rule if you know the basics and can apply them.

In evidence law, a witness' testimony through personal knowledge is typically highest on the totem pole of admissibility. However, when information within a document is disputed by the parties, such as the quantity term for goods in a contract, the rule requires production of the the original writing as the "best evidence" to resolve the dispute. When a matter is disputed by the parties, courts also refer to the matter as being "at issue."

For these reason, the BER is also referred to as the "original document rule." While this sounds straight-forward, it is only through examples that illustrate when the rule applies and when it does not apply that truly solidify the concept.

The BER has a fairly narrow application. The rule almost exclusively applies to writings, such as court judgments, contracts, and deeds, but sometimes also applies to photographs and recordings. When there is independent proof of an event that can also be proved by a writing, the BER does not apply. Additionally, the power of the BER is somewhat undermined by the fact that courts in many cases allow a duplicate of the original document when the original is destroyed or not available.

Example 1: BER does not apply

In a murder case, you are on the witness stand and are asked to identify a photograph entered into evidence as a correct representation of a street corner in your neighborhood.

The BER does not apply. The contents of the photograph are not disputed, or "at issue."

Example 2: BER does apply

The same fact pattern, with additional information. The photograph is not available. The defense asks you if you recall seeing the photograph, and if you recall seeing a man other than the defendant in the photograph holding a jeweled dagger. The jeweled dagger is separately entered into evidence and is identified as the murder weapon.

The prosecution should immediately raise an objection based on the BER. This is because the "contents of the writing," which is the identity of the person holding the murder weapon in the photograph, are at issue. The contents of the photograph have independent probative value beyond the photograph itself. The judge should sustain the objection and demand that the defense produce the photograph.

Example 3: BER does not apply

The same fact pattern as Example 2, but the witness claims to have seen a man other than the defendant walking around town holding the jeweled dagger, and testifies to that effect.

Here, the witness would be testifying from personal knowledge.

Example 4: BER does not apply

You are on the witness stand, and are asked if Smith was married to Jones on a certain date. You attended their formal wedding ceremony, as did two other witnesses. Even though proof of the marriage is recorded in a written document, a marriage license, testimony provided under oath by witnesses through personal knowledge provides independent proof of the same event. As a result, the BER does not apply.

Example 5: BER does apply

The prosecution calls as a witness a technician that viewed a videotape of a convenience store robbery, and asks the technician to describe how the robbery was carried out.

The BER applies. The prosecution is trying to prove facts of an event by offering testimony that describes video of the event, instead of offering the video itself. The technician lacks personal knowledge of the event, as the technician witnessed a representation of the event, the video, and not the event itself as it occurred.

Example 5: BER does apply

The prosecution calls as a witness an expert on automated tollbooth equipment. The witness testifies
that the defendant crossed the US border into Mexico based on the witness' analysis of data logs from the automated tollbooth equipment installed at the border crossing. The defendant has already been charged with possession of narcotics. At issue is whether the defendant crossed the US border into Mexico.

The BER applies. Note that  the witness never actually saw the defendant cross the US border into Mexico, the witness inferred this based on data in a log file. The witness lacks personal knowledge
of the event.  The prosecution must produce the data logs themselves.

The prosecution can then ask the witness to comment on the content of the data logs to support the argument that the defendant crossed the US border into Mexico. The defense can then rebut these statements with analyses of the data logs of their own expert witnesses, provide evidence showing that the automated tollbooth equipment was not functioning reliably at the time of the alleged border crossing, etc.

An approach to addressing BER questions
1) Determine if a document, photograph, or other writing is mentioned in the fact pattern
2) Ask the question "are the *contents* of the writing at issue?

If  both (1) and (2) are true, the BER holds.

A meander through Miranda

Overview
The Miranda warning is a procedural safeguard to ensure that criminal suspects are appraised of their 5th Amendment right against self-incrimination in criminal matters, and that they are reminded of their 6th Amendment right to counsel in criminal matters.

The reading of your Miranda rights is not required by the U.S Constitution.  However, in Miranda v Arizona, the U.S. Supreme Court created a presumption that custodial interrogation by police is inherently coercive, enough to intefere with your 5th Amendment right against self-compelled incrimination in criminal matters.

As a result, the Court created the Miranda warning, and the requirement that police recite it, in order to provide a necessary procedural safeguard against this presumption.

Definition
Police must recite the Miranda warning to suspects of an alleged criminal act, when those suspects are subject to a 1) custodial 2) interrogation by the police.

Whether on the Multistate or in an essay, you *must* analyze these two prongs, for *each* criminal charge.

Custody
Typically, you are in custody if you believe you are not free to leave, or your freedom of movement is reasonably restricted. Clear examples are when you are handcuffed or told you are under arrest.

The interesting examples, upon which you will most likely be tested, though, are the ones where you are not restrained or placed under arrest. Instead, you are simply asked to wait in your car while the police officer questions another driver, or calls in a drug-sniffing dog, to name a few examples.

Interrogation
Usually associated with "express questioning" or functional equivalent, where a police officer asks you questions "reasonably likely to elicit an incriminating response."

The opportunity to argue if the questioning constituted an "interrogation" is frequently essay territory.

When your "right to remain silent" is implied under Miranda
You do not need to expressly invoke your 5th Amendment right against compelled
self-incrimination where some form of official compulsion denies you a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S, 424 U.S at 656-657.


When you must expressly invoke you "right to remain silent"
Once you have waived your Miranda rights, you are no longer covered
by its protections until you expressly invoke them.

Invoking your Miranda rights
You must state this 1)clearly and 2) unequivocally (more important buzz words). A nod of the head or a "thumbs up" sign by a suspect is usually not enough.

Once you invoke your Miranda rights, police interrogation must immediately cease.

Waiving your Miranda rights
Your statement expressing your desire to waive your Miranda rights must be 1) voluntary 2) knowing and 3) intelligent. These are important keywords to mention and briefly discuss with any fact pattern involving a waiver of Miranda rights.

Terminating interrogation, and resuming/ re-engagement of interrogation
When a suspect invokes their 5th Amendment rights, they are also free  to waive them thereafter, and re-invoke them, (lather/rinse/repeat, etc.)

Be on the lookout for fact patterns where the suspect starts volunteering information a few minutes after invoking their Miranda rights, and then states "I've said enough already, I need a lawyer!" At this point, the police must again cease interrogating the suspect.

Exceptions
The public safety exception relaxes the requirement that police recite the Miranda warning prior to custodial interrogation.  Based on public policy, police have fairly wide latitude when exigent circumstances (emergencies) exist.

This is frequently a matter of intense debate. The questioning of one of the suspects in the aftermath of the recent Boston Marathon bombings brought this exception front and center in the media over the last 3-4 months.

Miranda and the Fruit of the Poisonous Tree doctrine
An ill-applied or non-existent Miranda warning will often result in a suspect's criminal testimony being "thrown out," or inadmissible during the prosecutor's case-in-chief against the suspect.

However, your otherwise inadmissible statements can still be used against you for impeachment purposes, such as during cross-examination. (Sidebar: this is one of many good reasons as a defense attorney to discourage your defendant from testifying under oath, or "taking the stand.")

The July bar exam is upon us.

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Routine for last week before exam

Sleep and diet will help you more than anything now.

Get 8 hours of sleep each night. If you haven't already
started to, get up each day at the same time you need
to get up for the testing days.

If you are staying in a hotel near the test facility, arrange
a wakeup call now.

Fruit, protein, lots of water, no alcohol. 

See a movie this weekend.

Keep Sunday to 6 hours of study.

During study, take 15 min breaks every hour, or hour and 1/2.

Exercise, even just a 20 minute walk per day, helps
relieve stress and clear your mind.

They day before the test, preferably, don't study at all.
If you must study, stop at 2pm. You need to rest your brain
for the next two days of testing.

You can do this!

Some thoughts a week before the exam

The February bar exam is approaching next week in most jurisdictions. Cram time is over, but you cannot take your foot off the gas quite yet. It is time to eat well, sleep well, and fill those gaps in
your knowledge base, especially in your essays. Push the protein, blueberries and fruit, and shy away from the junk food and soda (good advice for after the exam, too!)

For your MBE problem areas, it is much better at this point to narrow down to two answers, guess,
and quickly move on. Mark the question as one you want to go back to, if you have time.

For essays, focus on making sure you are reasonably competent in each testable subject. You will likely not excel on all questions, but you do not need to in order to achieve your goal: to pass!
On the subjects that give you the most trouble, focus on issue spotting rather than writing full formal essays now, to maximize your points.

Write terse sentences and do not neglect grammar and neatness. A well-organized answer that uses proper grammar often receives a higher score than a poorly-organized one with marginal grammar that raises more issues.

If you have not already done so, *please* make a dry run of the testing facility, NOW. Do not visit the testing facility for the first time on exam day.

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1. Each larger table and graphic is carefully rendered as a bitmap for readability and starts at the top of a new page. No table or graphic spans more than a single page on a Kindle Fire/original Kindle.
2. Every page is carefully and personally tested on actual Kindle Fire/Kindle readers, Macs/PCs/iPads and other tablets that run the free Kindle Reader App, and even iPhones (though the iPhones have a harder time displaying some of the tables).
3. The Table Of Contents is built by hand with manual anchors and hyperlinks for improved color contrast and compactness of display: no sloppy Table of Contents that span more than the width of one screen or that have too many "....." in their listings!
4. the text is carefully re-worked from the original manuscript to take the most advantage of the free-form display of the e-reader format while preserving important outlining heading numbers and indentation.

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Thank you, and good luck on the bar exam!

Alfred M. Zappala, Esq. and John J. Gillis, Esq.

The intentional tort of tresspass to land requires intent to enter (not intent to trespass)!
As a result, mistake is not a defense.