Trial Preparation Term Paper

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Trial Preparation

The Best Evidence Rule and Why it Was Implemented into the Court System

The best evidence rule in basic terms is an ancient legal rule that requires the originals, rather than copies, of documents to be presented as evidence during trial. Nevertheless, copies can in this case be accepted as evidence if the originals are not available, and the concerned party gives a conclusive excuse for their absence. For instance, if the original document is destroyed, lost, or is in the opponent's possession, the concerned party may not be required to produce the same. The rule is, however, only applicable "when a party seeks to prove the contents of the document sought to be admitted as evidence" (Cornell University Law School, 2010). Traditionally, a document only implied an inscription, or writing. Modern times have, however, seen the courts appreciate technological advancement, and accept as documentary evidence, information stored in the form of video or audio recordings, "in diagrammatic form or in a computer" (Murphy, 2008).

The facts "contained in the documents which came into existence at the time of the events giving rise to the dispute" are arguably the best form of evidence (Redeern, Hunter, Blackaby & Partasides, 2004, p. 298). This is understandably one of the reasons why the court system prefers documentary to oral evidence. Redeern et al. (2004) further point out that easier presentation and time-efficiency could be the other possible reasons. Additionally, documentary evidence is ideal in cases where cross-examination may be unreliable, such as when one party's counsel lacks expertise.

The main reason, however, for the increased reliance on documentary evidence is in the application of the best evidence rule. This is mainly because the best evidence rule attaches greater importance to the "weight of the evidence, rather than to its admissibility, and the contemporary documents will invariably be regarded as being of great weight" (Redeern et al., 2004, p. 298). The rule was, therefore, introduced into the court system mainly to improve the efficiency of documentary evidence as a basis for justice delivery, by reducing the risk of inaccuracy and fraud in handmade copies. A second fundamental reason for the adoption of the best evidence rule is its ability to effectively deal with the problem of hearsay.

Still on the best evidence rule, it is also important to note that the key reason behind the application of the same lies in its narrow context (scope). The rule, like I mentioned earlier, only requires that a party proves the contents (terms) of the document in question, and "not necessarily the truth of those terms, which would create a separate hearsay problem" (Rice, 2005, p. 190). In order to do this, the party is required to adduce the primary document; unless he/she can demonstrate that it is no by fault of theirs that the original is unavailable. Article X of the Federal Rule of Evidence has since codified this rule into the original writing rule. Secondary documents can be acceptable as admissible evidence if the original is either destroyed, lost or is in the opponent's possession. The aim of these exceptions is "to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party" (Murphy, 2008, p. 609).

The best evidence rule still manages to achieve its intended objectives of fraud prevention, because non-primary evidence is not admissible if the opposing party gives conclusive evidence that the same was not genuinely produced.

Additionally, the modernization of the best evidence rule through Article X of the Federal Rule of Evidence helps to eliminate rigidity, which may at times obstruct justice. In the case of Garton v. Hunter (1969), the court held that a piece of relevant indirect evidence was inadmissible, simply because it was not the 'best evidence' (Murphy, 2008, p. 604). Lord Denning, however, disapproved of the court's decision on the grounds that the court placed undue emphasis on "the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded" (Murphy, 2008, p. 604).

A Summary of the Current Status of Wiretapping Restrictions

Restrictions on wiretapping, and other modes of e-surveillance have been on the increase following long periods of abuse. The Fourth Amendment sought to guarantee people's security, and protect them against unqualified seizures and searches. Wiretapping began back in the 1840s with the invention of the telephone and the telegraph. It became rampant in the 1920s, with evidence obtained from wiretapped conversations being accepted as admissible evidence in court, as was the case in Olmstead v. The United States (1928). This prompted the passing of the Federal Communications Act by Congress in 1934 and a number of other laws in the subsequent years. The said laws included the Safe Streets and the Omnibus Crime Acts, which attempted to restrict surveillance of this kind. In Katz v. United States (1967), it was ruled that wiretapping is an infringement on individual right to privacy, and a violation of the Fourth Amendment. Wiretapping, therefore, has to be accompanied by a warrant from the relevant court; otherwise any resultant evidence is regarded inadmissible under the doctrine of the fruit of the poisonous tree.

How Evidence Derived from Wiretapping must be Packaged and Preserved.

It is important that wiretap evidence, once obtained, be correctly (properly) authenticated. Otherwise, it may be declared inadmissible in court. Recorded conversations provide an arguably strong statement of facts and can, therefore, provide crucial evidence during a trial. As has been discussed in the previous subsection, wiretap evidence is only acceptable as evidence if the seizure of the recorded conversation was conducted in accordance with the law, and does not go against the provisions of the Fourth Amendment.

Once a wiretap tape (DVD) is collected, a unique number is assigned to it, after which it is stored in a special casing (package), and then sent to a division which happens to be within the some work setting/unit. Here, specialized personnel "are in charge of keeping the chain of custody of the DVD, and they place it in the vault, which is in an area with restricted access" (Federal Evidence Review, 2010). This preservation ensures that all the rules regarding the proper handling of recorded evidence are adhered to. The rules governing the packaging and preservation of wiretap evidence include, but are not limited to: ensuring that the recordings are genuine and unedited, ensuring that the evidence is only handled by qualified personnel, and ensuring that the verification of those recorded is possible. Additionally, the proponent would, at times, be required to prove that the above rules were adhered to during trial. All this is aimed at ensuring that the recordings presented are "authentic 'as a matter of reasonable probability'" (Federal Evidence Review, 2010).

How Wiretapping Evidence Relates to the 'Fruit of the Poisonous Tree.'

The fruit of the poisonous tree doctrine governs wiretap evidence, and determines the degree to which the evidence is admissible in a court of law. The doctrine holds that "any evidence which results from "information or leads obtained from illegally seized evidence is inadmissible in a criminal prosecution" (Manusov & Larvey, 1999, p. 684). This implies that if evidence is obtained from illegally-installed wiretaps, then such evidence is inadmissible, as it is considered a fruit of illegal wiretapping. Illegal wiretapping includes surveillance without the party's consent, and without a warranty from the relevant court. It is important to note, however, that evidence will only be excluded with regard to the fruit of the poisonous tree if "the illegality is at least the 'but for' cause of the discovery of the evidence" (Manusov & Larvey, 1999, p. 685)

The Likely Outcome for this Case if the Originals are not Located

It is unlikely that the outcome of this case will be affected by the fact that the original tapes are unavailable. The best evidence rule provides for the use of copies in such a case. It is evident that the proponent is not at fault for the missing originals, since the somewhat conclusive documentation clearly indicates that the tapes in question were earlier on placed under the custody of the evidence custodian. The "copies are admissible as if they were the original," (Rice, 2005, p. 191) provided there is evidence that they meet the rules of packaging, and preservation of wiretap evidence.

Purposes of DNA Testing

DNA testing serves a number of purposes, the most common being its role in the fight against crime. Collection of DNA material from scenes of crime, and more recently, the adoption of the DNA retention technique has had significant improvement. This has been, of course, aided by technological advancement. DNA "provides investigative leads that can result in arrests and convictions" (Maschke, 2013). The most recent development, in this regard, seeks to embrace DNA fingerprinting, which is expected to provide faster and more reliable solutions to crime.

In other contexts, i.e. The medical field, DNA testing, amongst…

Sources Used in Document:


Cornell University Law School. (2010). Best Evidence Rule. Retrieved from

Federal Evidence Review. (2010). Authenticating Wiretap Recordings. Retrieved from

Manusov, V. & Larvey, J. (1999). American Jurisprudence (2nd ed.). Attribution, Communication, Behavior, and Close Relationships. Danvers: Thomson Legal Publishing Inc.

Maschke, K.J. (2013). DNA and Law Enforcement. Retrieved from

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