Writings, recordings, and photographs - Summaries

Learning Outcomes

After reading this article, you will be able to explain when summaries of writings, recordings, or photographs are admissible in evidence, identify the requirements for their use, and apply the best evidence rule to summary evidence. You will also be able to distinguish between proper and improper use of summaries and recognize common exam pitfalls on this topic.

MBE Syllabus

For MBE, you are required to understand the rules governing the use of summaries as evidence in place of original writings, recordings, or photographs. This includes:

  • The best evidence rule and its application to summaries.
  • When summaries of voluminous documents are admissible.
  • The foundational requirements for admitting summaries.
  • The distinction between summaries as evidence and summaries as demonstrative aids.
  • The need for originals or duplicates to be available for inspection.
  • The limits on using summaries to prove content.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is required for a summary of voluminous records to be admissible as evidence?
    1. The summary must be prepared by a party to the case.
    2. The originals or duplicates must be made available for inspection by the other party.
    3. The summary must be presented to the jury before trial.
    4. The summary must include only handwritten documents.
  2. Under the best evidence rule, a summary of original writings is admissible when:
    1. The originals are lost and cannot be found.
    2. The originals are so voluminous that they cannot be conveniently examined in court.
    3. The summary is more persuasive than the originals.
    4. The originals are in a foreign language.
  3. A party offers a summary of business records into evidence. The opposing party objects, claiming the originals were never made available for review. Should the summary be admitted?
    1. Yes, if the summary is accurate.
    2. Yes, if the summary was prepared by an expert.
    3. No, because the originals or duplicates must be available for inspection.
    4. No, unless the summary is certified.

Introduction

Summaries of writings, recordings, or photographs are sometimes used as evidence when the originals are too numerous or lengthy to be conveniently examined in court. The Federal Rules of Evidence allow such summaries under specific conditions, but only if strict requirements are met. This article explains when summaries are admissible, the foundational steps required, and how the best evidence rule applies.

Summaries and the Best Evidence Rule

The best evidence rule generally requires that the original writing, recording, or photograph be produced to prove its content. However, an exception allows summaries to be used as evidence when the originals are voluminous and cannot be conveniently examined in court.

Key Term: Best Evidence Rule The requirement that the original writing, recording, or photograph must be produced to prove its content, unless an exception applies.

Key Term: Summary Evidence A concise presentation of the contents of voluminous writings, recordings, or photographs, offered as evidence in place of the originals when they cannot be conveniently examined in court.

Requirements for Admissibility of Summaries

To admit a summary as evidence, several foundational steps must be satisfied:

  • The originals or duplicates must be made available for examination or copying by the other parties at a reasonable time and place.
  • The source documents must themselves be admissible evidence.
  • The summary must accurately reflect the contents of the originals.
  • The summary must be presented through a witness who is available for cross-examination about its preparation and accuracy.

Key Term: Voluminous Writings Exception An exception to the best evidence rule allowing summaries of voluminous writings, recordings, or photographs to be admitted if the originals cannot be conveniently examined in court and are made available for inspection.

Use of Summaries as Evidence vs. Demonstrative Aids

Summaries admitted under the voluminous writings exception are themselves evidence and may be considered by the jury as proof of the contents of the originals. In contrast, summaries or charts used only to help explain or illustrate testimony, but not admitted as evidence, are considered demonstrative aids and do not substitute for the originals.

Limitations and Inspection Requirement

Summaries cannot be used to admit otherwise inadmissible evidence. The party offering the summary must show that the source materials are admissible and that the other parties have had a fair opportunity to examine or copy them. If the originals are not made available for inspection, the summary is not admissible.

Worked Example 1.1

A plaintiff sues a corporation for breach of contract. The plaintiff claims damages based on 2,000 invoices issued over five years. At trial, the plaintiff offers a summary chart showing total amounts billed and paid, instead of introducing all 2,000 invoices. The defendant objects, arguing the summary is inadmissible.

Answer: The summary may be admitted if the plaintiff demonstrates that the original invoices are so voluminous as to be impractical to examine in court, that the originals or duplicates were made available to the defendant for inspection, and that the summary accurately reflects the source data.

Worked Example 1.2

A party offers a summary of business emails to prove the total number of sales made in a year. The opposing party objects, stating they were never given access to the emails.

Answer: The summary is inadmissible. The best evidence rule requires that the originals or duplicates be made available for inspection before a summary can be admitted as evidence.

Exam Warning

Summaries are not admissible unless the originals or duplicates have been made available for inspection by the other parties. Failure to do so is a common reason for exclusion on the MBE.

Revision Tip

Always check that the source documents are themselves admissible and that the summary is a fair and accurate representation. The summary cannot be used to admit evidence that would otherwise be excluded.

Key Point Checklist

This article has covered the following key knowledge points:

  • The best evidence rule generally requires the original writing, recording, or photograph to prove content.
  • Summaries of voluminous writings, recordings, or photographs are admissible if the originals cannot be conveniently examined in court.
  • The originals or duplicates must be made available for inspection by other parties before a summary is admitted.
  • The source documents must be admissible evidence.
  • Summaries admitted as evidence are distinct from demonstrative aids.
  • Summaries cannot be used to admit otherwise inadmissible evidence.

Key Terms and Concepts

  • Best Evidence Rule
  • Summary Evidence
  • Voluminous Writings Exception
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