Chapter 13 Authentication, Identification, and the Best Evidence Rule I. Authentication and Identification:
a. 901: Requirement of Authentication or Identification i. (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. ii. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: 1. (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. 2. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. 3. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. 4. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. 5. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. 6. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. 7. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. 8. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. 9. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. 10. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. 902: Self-authentication—Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: i. (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. ii. (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. iii. (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. iv. (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. v. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. vi. (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
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(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. (11) Certified Domestic Records of Regularly Conducted Activity.--The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record— 1. (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; 2. (B) was kept in the course of the regularly conducted activity; and 3. (C) was made by the regularly conducted activity as a regular practice. 4. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. (12) Certified Foreign Records of Regularly Conducted Activity.--In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record— 1. (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; 2. (B) was kept in the course of the regularly conducted activity; and 3. (C) was made by the regularly conducted activity as a regular practice. 4. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
c. What is Authentication: i. Haven’t established the witness has personal knowledge ii. Offering physical evidencelacks foundation, haven’t established authenticity d. WHY you need to authenticate: Conditional Relevancy i. E.g.—if you want to offer gun in murder case, must show that victim died of gunshot and linked to crime by ballistics or crime scene = becomes more relevant ii. Authenticating: 1. Establishing the relevancy to the case 2. Establishes this is what you say it is [this is the gun in the murder case] e. 901: i. (a) Offer enough evidence to prove that evidence is what you say it is ii. (b) Helpful list of examples of commonly used ways to authenticate particular types of evidence [NOT bound in any way]…NEED to figure out a way by use of extrinsic evidence to prove that evidence is what you say it is f. 902: certain types of evidence do NOT require authentication [deal with documents under seal; treaty; copies of documents under seal (certified copy of birth certificate); newspaper and periodicals; will]do NOT need anything to authenticate, it authenticates itself i. Party to lay foundation of authentication or parties may stipulate to authentication 1. Officer proving that this was the gun from the accident: show that there was NOT a break in chain of custody or officer can carve his initials in the gun 2. Distinctive gun: recognize because it was an unusual gun [mother of pearl handle with jade] ii. Cal.—rebuttable presumption that admissible g. Problems: i. 13-1: In complex commercial litigation case, P offers various items into evidence, how will they authenticate 1. telephone conversation—depends on if trying to show a person or business called
a. Person—this is X speaking on the phone and capable of answering phone at the time…if outgoing call must show that registered to that person and that person identified himself as that person b. Business—number dialed is number registered to business and subject matter was one that business engaged in c. Authenticate telephone call: VERY easy way is by voice recognition [sufficient, personal knowledge of what person’s voice sounds like and heard voice and recognized it]…if have since acquired familiarity that relates back to the 1 st call i. Incoming calls—witness says ‘I recognize this voice’ or ii. Reply Doctrine—if place outgoing call to business and discuss something related to subject of business [want to buy 2,000 widgets] and 30 minutes later get incoming call from another person [can authenticate incoming call from business that called in outgoing call]…fact that you authenticated 1st call, can authenticate reply call [fact that they called back, must have been responding to request of outgoing call….therefore within the same business] 2. business associate’s handwriting—3 ways: a. NON-expert opinion on handwritingsomeone who sees your handwriting…if business associate, ask if you have seen sign name and if familiar with signature and ask if signature on document was made by boss [testify based on personal knowledge] b. Handwriting expert—expensive c. Have a known handwriting sample by person allegedly signed [interrogatory or document production request] and then offer contract in question and let jury decidejurors are competent to make a non-expert handwriting decision [known sample with questionable document and let jury decide] 3. Newsweek magazine—Self-Authenticating Document = witness testifies that Newsweek 4. Diet Coke label—Self-Authenticating = trademarks, trade inscriptions 5. photograph of D—if for some reason photograph is in issue [question of if D in picture] = call person who took it or person familiar with D [anyone who knows what D looks like…his wife, his brother] 6. blueprint of a house—depends on what need blueprint for a. If it isn’t important that to scale or hidden details = anyone generally familiar with house can authenticate b. If concerned with things not visible [wiring; plumbing; scale] = person who drafted blueprint or blueprint company c. X-rays = difficult to authenticateauthenticating by process—must show that accurate record was made of who was taking X-ray; machine was operating properly; technician was properly operating ii. 13-2: after picking up daughter from school in green van, J turned onto busy Blvd. when he looked down to put tape in player, he drifted into left lane and driver in left lane who was speeding and not paying attention…in crash, D broke leg and sues J…how authenticate 1. photograph of scene of auto accidentanyone who was at the scene of the accident can authenticate [certainly the person who took the picture] = were you at the scene of the accident? Is this a fair and accurate depiction of accident scene on that day? 2. statement of bystander, who happened to be CPAWritten Statement: a. Handwriting—bystander (if it is his statement, if he wrote it); anyone familiar with his handwriting; jury could compare b. Content—something he remembered saying [hearsay rule…written recollection recorded]; if statement taken by someone else (person who took or heard statement) 3. report of emergency room physician after treating D—person who wrote report; business record (custodian that has sufficient familiarity…authentication can occur by certification 803(6)) 4. police officer’s accident report—police officer who took report could authenticate; public records can be self-authenticating and don’t have to call custodian of report
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5. can of Bud beer recovered from back of D’s car—fact that it is really Bud = self authenticating, but must tie it to car somehow = need officer who recovered it to testify that is how he found it iii. 13-3: R and Assoc. sued for breach of K…R claimed S owed $4,000 for performance under agreement to create campaign…R’s associate had agreed to create print campaign in newspapers…S’s associate had signed agreement after 3 phone calls…B sent agreement with separate paper indicated that S reserved right to review…3 advertisements created and run in papers after sent to B via messenger service…R requested payment and had no reply 1. Evidence of telephone conversations [should have been acquired familiarity of voices and call parties to be ear witnesses to authenticate those conversations]; 2. Authenticate contracts [signatories to contract—handwriting comparison]; 3. Ads run in papers [showing papers = self-authenticating, ads in there or they are not] iv. 13-4: SG was executive at OW…during meeting she observed argument between P, CEO, and L, CFO…L ended up suing P claiming she had been fired at meeting, P rebutted by claiming that L had quit, SG questioned at trial, asked if recognizes audio tape: authenticate by… 1. Participant in conversation—based on personal knowledge, the tape is accurate 2. Tape recording being made and outside room there is monitoring (someone wearing wire)—person listening in could authenticate and any person who heard the conversation 3. Person recording can NOT hear as it is being recorded and NO one recorded will testify because being prosecuted—tape recorder capable of recording on date in question; operator knew how to operate the equipment; chain of custody process to show NO material alterations or deletion before offered into evidence at trial 4. Can’t vouch for accuracy of entire tape—risks of whether there have been material deletions/alterations to tape; chain of custody expert to tape (exactly way it was day it was taken)…or person who has had the tape should be called v. 13-5: D, ML’s Books, allegedly failed to fulfill payment on several promissory notes…P, R, testifies in action for nonpayment about the notes…R’s counsel wishes to introduce the notes in evidence, how do you authenticate notesNO hearsay issue because VERBAL ACTS 1. If notarized = self-authenticating or if law makes type of paper that is self-authenticated [varies by jurisdiction] 2. Handwriting comparison 3. If business record = document custodian to lay foundation [803(6)] vi. 13-6: After T’s death, his brother R brought an action to probate a letter from T as the will…the letter stated, ‘I devise to you, R, this 4 th day of Jan. in the year 2001, my entire antique car collection’…what must R show to properly authenticate the letterholographic will = assuming handwritten, someone to authenticate handwriting (brother is competent, but might want someone else to do it because he is interested witness) vii. 13-7: LS was injured at the In Town Shopping Mall when a display fell on her, LS sued the Mall for damages…at trial, MS wanted to introduce a photograph of the area in which the display was maintained, what must counsel do to lay the foundation for a photographrelevancy issue…if had done something to change area where displays maintained, could be 403 issue of misleading = need to testify that accurate photograph of area maintained and familiar with area and substantially the same as day of accident h. Types of Evidence: i. Demonstrative—evidence that makes understanding other evidence easier = explains; clarifies; gives an example 1. E.g.—photograph or drawing of accident scene; medical malpractice—skeleton model 2. Testimony of witness that it is fair and accurate representation/diction = lays foundation for admission of demonstrative evidence ii. Real— 1. E.g.—murder weapon actually tied to murder charged; crumpled car 2. Must establish NOT only is thing what you claim it is, but establish a causal connection to case BEST EVIDENCE RULE:
a. 1001: Definitions—For purposes of this article the following definitions are applicable:
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(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. ii. (2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures. iii. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". iv. (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. 1002: Requirement of Original—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 Act of Congress. 1003: Admissibility of Duplicates—A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplica te in lieu of the original. 1004: Admissibility of Other Evidence of Contents—The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-i. (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or ii. (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or iii. (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or iv. (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. 1005: Public Records—The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. 1006: Summaries—The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. 1007: Testimony or Written Admission of Party—Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. 1008: Functions of Court and Jury—When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. BEST EVIDENCE RULE—can offer anything out there to prove your case [weaker evidence allowed]
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i. Requirement—Original Document Rule [Cal.—Secondary Evidence Rule]: 1. ORIGIN: Under CL, required proof of document by submission of original document…admitting document [required original, NOT duplicate (duplicates made by hand and could have errors)] 2. PRESENTLY: have Xerox machines; negatives…MOST common use of BER is to keep out testimonial evidence of the writing, recording, or photograph a. E.g.—want to prove George Harrison infringed song = can NOT come in and hum songs, must play the songssource of controversy b. 1002: to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required… i. To prove CONTRACT dispute, must admit actual contract rather than what someone says about the contract ii. Photograph, must offer photo, not just testimony iii. Offer recording, NOT just someone testifying what it sounded like ii. E.g.—Lucas case where accused George Lucas of infringing on ‘Garthian Striders’…NOT record of characters before and NO copyright of originals 1. Could NOT offer originals that were allegedly made prior to movie
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2. Court threw out because could NOT bring in iii. RULE: Need original 1. EXCEPTIONS: Duplicate can be offered instead of original… a. 1003: A duplicate is admissible to the same extent as an original i. Limitations: 1. A genuine question is raised as to the authenticity of the original [E.g.—2 versions of K and question of which is original] OR 2. In the circumstances it would be unfair to admit the duplicate in lieu of the original a. Catch-all b. Original had notes and that is important to the case b. 1004: Production of original is excused… i. Can show that original was lost or destroyed through no fault of the party [if can show that original contract is lost/destroyed, then can offer ANY secondary evidence as to the terms of what the contract was…even if you have a perfectly good duplicate = NOT forced to offer photocopy] ii. If originals can NOT be obtained through judicial process [E.g.— original in Bora Bora] iii. Original is in the hands of the one against whom is offering [E.g.—if D has in his hands, P does NOT have to rip it out of hands] iv. Collateral issue…NOT controlling at trial c. 1005: Public Records—do NOT need original birth certificate, copy is OK d. 1006: Voluminous Records—permitted to create a summary and offering lieu of original, BUT originals MUST be available for copying/inspecting [E.g.—tons of documents in bank fraud case] e. 1007: Testimony or Written Admission of Party—if has opposing party testifying or acknowledging [prior deposition] iv. E.g.—testifying about accident and while videotaping, someone asked who ran the light and this is recorded on tape, objection BER = does NOT matter that there is videotape that records it…witness testifying to their own knowledge [NOT in violation of BER] 1. Mrs. Chase, did you review the videotape and according to video who ran the light = violation of BER…testifying to contents of tape [interpreting contents/depiction] 2. NEVER problem for witness to testify based on his/her personal knowledge, even if there is video/audio recordingcan always testify to their personal knowledge Problems: i. 13-8: HH was hired to build a porch on PP’s house…H claimed that he was not paid for the job after completing it, so he brought suit…at trial, the only issue was whether HH completed the work…HH testified in his case in chief 1. H, are you employed? Yes, I’m a licensed building contractor [objection = BER]NOT a valid objection = he would have the personal knowledge to know whether he had license 2. Who did the work on the infrastructure of the deck? JW [objection = BER]NOT a valid objection, NO writing 3. What was your role? I supervised construction and kept records of what I did [objection = BER]NOT a valid objection…ONLY if ask what do records show [this would be violation BER] ii. 13-9: P, E, sued the D, R, for breach of K involving the sale of chocolate bars on March 12th…sole issue at trial was whether the number of based stated in K was 3,800 or 38,000, D offers duplicate of original K at trialas long as there is no question to the authenticity of the original [2 contracts negotiating and only 1 signed] and nothing to make it unfair = duplicate is perfectly admissible iii. 13-10: In the same breach of K, D, R contends that the original K was washed away in a huge rainstorm that destroyed her office and she only managed to save a copy of itduplicate can be offered because original was destroyed through NO fault of her own…could even testify as to what contract said = ALL secondary evidence is now admissible
iv. 13-11: P, J Motor Credit Co., sued D for allegedly failing to make a $5,500 payment on D’s new Astro electric car…at trial, D, E, offers a duplicate of his payment receiptif he is proving payment by receipt, would have to offer receipt and duplicate is admissible as long as there is NO genuine question of authenticity and it is NOT unfair v. 13-12: E subsequently brings suit for an alleged overpayment to J…J defends by claiming that NO overpayment occurred and that he had a receipt to prove it…at trial, J forgets to bring in the receipt, but still testifies about the payment, E objects to the testimony, claiming testimony about the payment without receipt violates the BERif testifying based on personal knowledge about the payment, does NOT matter that there is a receipt, therefore his testimony would be admissible [even if receipt out there]…if he said that there is a receipt and this is what it said = violation of BER [VERY narrow rule] vi. 13-13: To prove that a famous person had been present on the San Diego boat, the P offers the duplicate of a photograph taken of the famous individual on the boatduplicate of photograph would probably by Xerox [print of same negative is defined as original, can have 100,000 originals] = admissible vii. 13-14: D, Magoo, is charged with a crime…after orally confessing to the police, the D signs a verbatim written version of his confession…at trial, the police forget to bring the written confession, but attempt to testify about the oral confession anywayif testifies to hearing confession, it is okay, fact that confession is also placed in writing does NOTHING, can testify as to what he heard [based on personal knowledge]…if asked, what are contents of confession signed = testifying as to contents of writing and violating BER [form over substance] viii. 13-15: H is charged with bank robber of the National Bank…B, the teller who was robbed, testifies for the prosecution…he is shown a copy of a photograph of the robbery taken by the bank surveillance camera…B is then asked to verify the people and their locations depicted in the photograph…B also indicates that the photograph shows the robber carrying a gun in his belt [B does NOT independently remember seeing the gun on the assailant during the robbery because of his fear at the time]testifying that photograph shows the robbers carrying the gun = testimony is NOT the original photograph…can NOT testify about contents of photograph, exhibit speaks for itself [jury entitled to see]…violates BER!! [if asked if this photograph is accurate depiction = acceptable because just laying foundation] ix. 13-16: B sues NBS Television for distributing a videotape in which NBS made allegedly libelous statements about him…at trial, B testifies about the tape, but does NOT bring it with him 1. Does B’s testimony violate the BERtestifying about the contents of the tape = clear violation of BER 2. If B brings a copy of the tapewould be OK as long as there is NO dispute about the authenticity of original or it is unfair 3. Pres. of NBS was overheard 2 weeks prior to trial at party saying ‘our employee said in that videotape that B was a snake, so what?’using statement to try and prove contents of tape [1007: company/person against whom it is offered, must be in writing or deposition] = does NOT excuse admission of original tape x. 13-17: In a worker’s compensation action, the primary issue at trial was the P’s earning capacity…P testified on direct, how much did you earn in 1992? I earned the amount of…[objection = BER]does NOT violate BER, should know how much he earned based on personal knowledge and therefore can testify about it k. US v. Duffy—laundry mark on shirt says ‘DUF,’ found in stolen vehicle…Duffy charged with transporting stolen vehicle in interstate commerce i. Calls case agent to testify as to what he found in car…testifies that found shirt that had laundry mark ‘DUF’ and D objected as a violation of BER ii. 9th Circuit said it wasn’t barred by BER because it was a shirt…and in situation like this could look at it as a chattel and as a writing 1. Didn’t look at it as a writing 2. Said it was collateral [however, Chase said doesn’t seem so collateral because ties D to car…therefore should bring shirt in] iii. What if?? We found blue shirt, button down collar, with monogram of ‘D’ on shirt = more or less of a writing…at some point writings fade into chattels
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iv. Interpretation: Chattel v. Writing—if the writing is NOT particularly complex, and is more in character of a mark = court more likely to treat as chattel Review Problem—13-18: H brought suit against a furniture store, alleging that he had canceled his purchase pursuant to the store’s ‘money-back guarantee’…H testified at trial that he had also requested a refund by mail within the 90 day refund window permitted by the tore i. H created a worksheet reviewing the timing/description of events in questionworksheet is NOT best evidence of testimony = creating demonstrative aid to help jury understand what he is testifying to, NOT as to contents of worksheet…BER absolutely does NOT apply!! ii. If H wrote down the time and date of the mailing in his records, but did NOT bring records to courtif testifying as to personal knowledge that he remembers time/date = NO violation of BER [if he forgets and recollection is refreshed from the note = NO violation of BER; if still can’t remember, admit the document] iii. To show that letter was received, H was given a return receipt from the post office, if H testifies about the receipt without brining it to court, does it violate the original writings ruleVIOLATES BER = testifying as to contents of receipt…NO personal knowledge of receipt because written by someone else [should have receipt come in]