Bar Exam — MBE (Multistate Bar Exam)EvidenceMedium
In a civil defamation trial, the plaintiff's attorney seeks to introduce a transcript of a recorded phone call between the defendant and a journalist, where the defendant made the allegedly defamatory statements. The defendant objects, arguing that the original recording must be produced. How should the court rule?
- ASustain the objection, as the transcript is secondary evidence and not properly authenticated.
- BSustain the objection, as the Best Evidence Rule requires the original recording.
- COverrule the objection, as a transcript is considered an 'original' for purposes of the Best Evidence Rule.
- DOverrule the objection, as the Best Evidence Rule only applies to documents, not recordings.
Show answer & explanationAnswer & explanation
Correct answer: B. Sustain the objection, as the Best Evidence Rule requires the original recording.
The Best Evidence Rule (or Original Document Rule) requires that to prove the content of a writing, recording, or photograph, the original is generally required. A transcript of a recording is usually not considered an 'original' itself, unless the content of the recording is not at issue. Here, the content is precisely what's at issue.
Why the other options are wrong
- A. While authentication is always required, the primary issue raised by the defendant's objection is the Best Evidence Rule, which governs the form of the evidence, not just its authentication.
- C. A transcript is a copy or representation of the original recording, not an original itself, when the content of the recording is the subject of proof.
- D. The Best Evidence Rule (FRE 1001) expressly applies to 'writings, recordings, and photographs,' so it does apply to recordings.
Best Evidence Rule (Original Document Rule)
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.
- Applies when the contents of the document/recording are 'at issue'.
- An 'original' includes the document or any counterpart intended to have the same effect.
- Duplicates are generally admissible unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
Memory trick: Original: 'O.R.I.G.I.N.A.L.' is the best way to prove it!