Title VII. Evidence (Chapters 90-92) Chapter 90. Evidence Code (Refs & Annos)
90. 952. Requirement of originals
Except as otherwise provided by statute, an original writing, recording, or photograph is required in order toprove the contents of the writing, recording, or photograph.
CREDIT(S)
Laws 1976, c. 76-237, § 1; Laws 1977, c. 77-174, § 1.
LAW REVISION COUNCIL NOTE--1976
This section, which is a restatement of the “best evidence” rule requiring the production of the originaldocument to prove its contents, expands the rule to include the originals of writings, recordings, andphotographs as defined in § 90. 951(1) and (2). Apparently, this section restates the rule followed inFlorida cases. In re Mobilift Equipment, Inc., 415 F.2d 841 (5th Cir. 1969); Firestone Service Storesv. Wynn, 131 Fla. 94, 179 So. 175 (1938). Similar provisions are contained in the Model Code ofEvid.Rule 602 (1942) and the Calif.Evid.Code § 1500.
This section is not applicable on each occasion that a photograph is introduced as evidence. If it were,only the original photograph would be admissible and oral testimony of the witness could be excluded.In most cases a photograph is used to illustrate the testimony of a witness. Normally, the witnessidentifies a photograph, videotape, or motion picture as being a correct representation of that whichhe observed or a scene with which he is familiar and adopts it as his own testimony. Since no effortis made to prove the contents, the rule is inapplicable. An original is required rather than permittinga witness to testify to what he saw or heard, in those few cases when the contents are sought to beproved, e.g., a copyright infringement action based on a movie film or a defamation action.
Although the admissibility of X-rays under the “best evidence” rule has apparently never been ruledon directly by Florida courts, the implication is that such materials would be admissible and an expertwould be permitted to testify as to what they show, etc. State ex rel. Carter v. Call, 64 Fla. 144, 59So. 789 (1912); Williamson Candy Co. v. Lewis, 144 So.2d 522 (Fla.3rd Dist. 1962). Presumably,Florida follows the weight of authority in other jurisdictions requiring production of the original X-ray,if an expert is going to testify as to what the X-ray disclosed. Daniels v. Iowa City, 191 Iowa 811, 183N.W. 415 (1921); Patrick & Tillman v. Matkins, 7 P.2d 414 (Okl.1932). However, it should be notedthat under § 90.704 the basis of an expert's testimony does not have to be admissible.
The reference in this section to the statutory exception for the production of the original refers to thenumerous statutory provisions providing for the admissibility of photographic or microphotographiccopies without regard to the status of the original. This reference alerts the user that the documentaryevidence he is seeking to introduce may not require production of the original. Examples of thisexception include Fla.Stat. § 92.35 (Uniform Photographic Copies of Business and Public Recordsas Evidence Act), Fla.Stat. § 230.331(2) (district school records), and Fla.Stat. § 658.11(3) (bankingand trust company records). A certificate of the secretary-treasurer of the Board of Dentistry as to thecontents of certain records is made admissible by Fla.Stat. § 466.28. Additional statutory provisionsare included in the comment to § 90. 953.
See Fed.Rule Evid. 1002; Calif.Evid.Code § 1550. For a general discussion of the application of thissection, see Brown, Authentication and Contents of Writings, 1969 Law & Soc.Order 611; Note,Authentication and the Best Evidence Rule Under the Federal Rules of Evidence, 16 Wayne L.Rev.195 (1969).
HISTORICAL AND STATUTORY NOTES
Amendment Notes:
Laws 1977, c. 77-174, a reviser's bill, amended this section by inserting the words “in order” preceding“to prove” as those words were editorially supplied in Fla.St.1976, Supp. by the division of statutoryrevision and indexing.
Prior Laws:
Fla.St.1978, Supp., § 92.35.
Laws 1951, c. 26901, §§ 1, 3.
Federal Evidence Rules:
For rule relating to requirement of original, see Rule 1002, Fed.Rules Evid., 28 U.S.C.A.
Uniform Rules of Evidence:
For rule relating to requirement of original, see Rule 1002, Uniform Laws Annotated, Master Edition, vol.13.
CROSS REFERENCES
Abstracts of title, evidence, see § 703.08.
Financial institutions, records, see § 655.91.Birth certificates, see §§ 382.015, 382.025.
Certified copies of deeds, mortgages, etc., see § 695.19.Circuit court clerks, vouchers and cancelled warrants, see § 28.30.Death certificates, see § 382.025.Department of highway safety and motor vehicles, records, see § 321.23.Photographic copies as evidence, see § 92.29.Recorded instruments destroyed by fire, see § 695.15.State treasurer, records, see § 17.64.Transportation department records, see § 334.196.Vital statistics, see § 382.004.
LIBRARY REFERENCES
Criminal Law 398, et seq.
Evidence 174, 175, 380.Westlaw Topic Nos. 110, 157.C.J.S. Criminal Law §§ 833 to 844, 1040.C.J.S. Evidence §§ 813 et seq., 814 et seq.
RESEARCH REFERENCES
Encyclopedias
Foundation for Admission of Secondary Evidence, 35 Am. Jur. Proof of Facts 2d 147.
11 Florida Practice Series § 8:2, Evidentiary Problems With Documentary and Physical Evidence.
21 Florida Practice Series § 15:2, Defenses to a Claim of Misleading Advertisement.
21 Florida Practice Series § 18:2, Defenses to a Claim of Usury.
21 Florida Practice Series § 19:2, Defenses to a Claim of Breach of Contract (Written).
21 Florida Practice Series § 21:2, Defenses to a Claim of Breach of Third Party Beneficiary Contract.
21 Florida Practice Series § 22:2, Defenses to a Claim of Rescission.
21 Florida Practice Series § 23:2, Defenses to a Claim of Specific Performance.
21 Florida Practice Series § 24:2, Defenses to a Claim of Tortious Interference With a ContractualRelationship.
21 Florida Practice Series § 29:2, Defenses to a Claim of Collections Upon Worthless Checks, Drafts, orOrders of Payment.
21 Florida Practice Series § 32:2, Defenses to a Claim of Money Lent.
21 Florida Practice Series § 35:2, Defenses to a Claim of Promissory Note.
21 Florida Practice Series § 36:2, Defenses to a Claim of Wrongful Garnishment.
21 Florida Practice Series § 48:2, Defenses to a Claim of Declaratory Judgment.
21 Florida Practice Series § 57:2, Defenses to a Claim of Libel, Slander, or Defamation by Implication.
Wharton's Criminal Evidence § 15:1, Introduction to the Original Document “Best Evidence” Rule.
Wharton's Criminal Evidence § 127:11, Florida.
UNITED STATES CODE ANNOTATED
Presidential archival depository, see 44 U.S.C.A. § 2112.
NOTES OF DECISIONS
In general 1
Acts of municipal boards evidenced by writing, transactions, etc., evidenced by writing 13Administration or distribution of estates, facts evidenced by writing, transactions, etc., evidenced bywriting 11
Administrative agency records 17Best evidence 2Books of account, private memoranda, and correspondence, transactions, etc., evidenced by writing 16Certificates, public health 28Certificates and election returns 20Collateral matters 5Conveyances, contracts, and other instruments evidenced by writing, transactions, etc., evidenced bywriting 15Corporate acts, proceedings, and records evidenced by writing, transactions, etc., evidenced by writing14Corporate instruments 18Election returns and certificates 20Estoppel and waiver 29Existence of writing 3Fact of making or existence of writing 3Hospital records 21Insurance policies 19Inventory copies 22Judicial acts, proceedings, and records, in general, evidenced by writing, transactions, etc., evidencedby writing 9Legislative records 23Meetings, minutes 24Minutes of meetings 24Moving pictures 25Negotiable instruments 26Official acts, proceedings, and records evidenced by writing, transactions, etc., evidenced by writing 12Ownership, possession, or control evidenced by writing, transactions, etc., evidenced by writing 8Payment or release evidenced by writing, transactions, etc., evidenced by writing 7Preservation of issues for review 30Promissory notes 27Public health certificates 28Records, administrative agency 17Recovery, entry, or enforcement of judgment evidenced by writing, transactions, etc., evidenced bywriting 10Transactions, etc., evidenced by writing 6-16
Transactions, etc., evidenced by writing - In general 6Transactions, etc., evidenced by writing - Acts of municipal boards evidenced by writing 13Transactions, etc., evidenced by writing - Administration or distribution of estates, facts evidencedby writing 11Transactions, etc., evidenced by writing - Books of account, private memoranda, and correspondence16Transactions, etc., evidenced by writing - Conveyances, contracts, and other instruments evidencedby writing 15Transactions, etc., evidenced by writing - Corporate acts, proceedings, and records 14Transactions, etc., evidenced by writing - Judicial acts, proceedings, and records, in general,evidenced by writing 9
Transactions, etc., evidenced by writing - Official acts, proceedings, and records evidenced bywriting 12Transactions, etc., evidenced by writing - Ownership, possession, or control evidenced by writing8Transactions, etc., evidenced by writing - Payment or release evidenced by writing 7Transactions, etc., evidenced by writing - Recovery, entry, or enforcement of judgment evidencedby writing 10
Waiver and estoppel 29X-rays 41. In general
When it is the purpose of a party to establish the terms of a writing, production of the documentary originalis required unless such production is not feasible. U. S. v. Holley, 1972, 463 F.2d 634. Criminal Law
400(1)
It is not necessary in every instance to produce the physical evidence in order to produce testimony aboutit. Smith v. State, App. 3 Dist., 305 So.2d 868 (1975), certiorari denied 316 So.2d 284. Criminal Law
398(1)
Generally, the best evidence of contents of written instrument consists in actual production of instrumentitself, and secondary evidence of its contents cannot be admitted until nonproduction of the original hasbeen satisfactorily accounted for. Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit ofHome Ins. Co., N. Y., 131 Fla. 94, 179 So. 175 (1938). Evidence 161.1; Evidence 183(1)
Incidental mention of existence of a written instrument may be made without producing or accounting forabsence of the instrument, where there is no attempt made to prove the contents or legal effect of theinstrument. Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N. Y.,131 Fla. 94, 179 So. 175 (1938). Evidence 159
Where evidence is primary or original in character, it should not be excluded because there might be otherprimary evidence corroborative or stronger and more conclusive. Smith v. State, 71 Fla. 639, 71 So. 915(1916). Criminal Law 398(1)
The highest degree of proof of which the case is susceptible must be produced, if accessible. Orman v.Barnard, 5 Fla. 528 (1854). Evidence 154
2. Best evidence
Although phrase “Best Evidence Rule” is frequently used in general terms, the “Rule” itself is applicableonly to proof of contents of a writing. U. S. v. Duffy, 1972, 454 F.2d 809. Criminal Law 398(1)
When disputed evidence is an object bearing a mark or inscription, and is, therefore, a chattel and awriting, trial court has discretion to treat evidence as a chattel (not subject to best evidence rule) or as awriting (subject to best evidence rule); in reaching decision, trial court should considerpolicy-considerations behind rule. U. S. v. Duffy, 1972, 454 F.2d 809. Criminal Law 398(1)
Testimony of local police officer and an FBI agent that trunk of stolen automobile contained two suitcasesand that a white shirt imprinted with a laundry mark containing first three letters of defendant's last namewas found inside one of suitcases was admissible, in prosecution for knowingly transporting a stolen motorvehicle in interstate commerce, over objection that shirt itself should have been produced as best evidence,where shirt was not, under ordinary understanding, a writing and was not, therefore, governed by bestevidence rule, and where “writing” on shirt was simple, with little danger that witnesses would inaccuratelyremember terms of “writing”, and was by no means central or critical to case against defendant. U. S. v.Duffy, 1972, 454 F.2d 809. Criminal Law 398(1)
Best evidence rule comes into play only when terms of writing are being established and requires generallythat in such situations original document must be introduced in evidence. In re Mobilift Equipment of Fla.,Inc., 1969, 415 F.2d 841. Evidence 157(1)
Testimony of store manager concerning contents of surveillance recording was inadmissible under statuteknown as “best evidence rule” in defendant's trial for grand theft of DVDs from video store, as contentsof surveillance recording concerned matters directly in dispute, and State's inability to show surveillancerecording due to temporary technical difficulties did not qualify recording as being “lost or destroyed”within meaning of statute permitting admission of other evidence of contents of original writings orrecordings. Dyer v. State, App. 4 Dist., 26 So.3d 700 (2010). Criminal Law 398(2)
Photograph of lotion bottle from victim's bedroom bearing defendant's fingerprint was admissible to aidin testimony of fingerprint analysis expert, in trial for first degree murder and armed sexual battery;admission of photograph did not violate the best evidence rule because it was not introduced to provecontents of the picture. Darling v. State, 966 So.2d 366 (2007), rehearing denied. Criminal Law
398(2); Criminal Law 438(2)
Witness's testimony about contents of letter that referred to witness by a name that only defendant usedfor him did not violate best-evidence rule in capital-murder trial; letter was unavailable, and there was noevidence or assertion that the state, as proponent of destroyed writing, lost or destroyed letter in bad faith,as witness testified that he “threw it out” for fear that someone would find letter. England v. State, 940So.2d 389 (2006), revised on rehearing , certiorari denied 127 S.Ct. 1916, 549 U.S. 1325, 167 L.Ed.2d571. Criminal Law 398(2)
Trial court's error in overruling attempted burglary defendant's objection, based on best evidence rule, todetective's testimony that videotape taken from store showed defendant putting a large amount of cash oncounter, was harmless; detective's testimony concerning videotape was cumulative, as fact that defendantwas in possession of a large amount of change was testified to by four witnesses other than detective.Russell v. State, App. 5 Dist., 844 So.2d 725 (2003). Criminal Law 1169.10
Trial court's act of overruling attempted burglary defendant's objection, based on best evidence rule, todetective's testimony that videotape taken from store showed defendant putting a large amount of cash oncounter, was erroneous; detective testified as to the content of videotape instead of admitting the tape intoevidence. Russell v. State, App. 5 Dist., 844 So.2d 725 (2003). Criminal Law 403
The best evidence rule requires that if the original evidence or a statutorily authorized alternative isavailable, no evidence should be received which is merely substitutionary in nature. McKeehan v. State,
App. 5 Dist., 838 So.2d 1257 (2003). Criminal Law 398(2)
Evidence which indicates that a more original source of information is available should be excluded underthe best evidence rule. McKeehan v. State, App. 5 Dist., 838 So.2d 1257 (2003). Criminal Law 398(2)
Unless otherwise excused by the evidence code, the original must be produced under the best evidence ruleunless it is shown to be unavailable for a reason other than the serious fault of the proponent. McKeehanv. State, App. 5 Dist., 838 So.2d 1257 (2003). Criminal Law 398(1)
The best evidence rule is predicated on the principle that if the original evidence is available, that evidenceshould be presented to ensure accurate transmittal of the critical facts contained within it. McKeehan v.State, App. 5 Dist., 838 So.2d 1257 (2003). Criminal Law 398(1)
Trial court's admission of oral testimony to establish the contents of a videotape, which allegedly showedrobbery defendant's participation in other robbery, violated the best evidence rule, where State neverestablished the videotape's unavailability. McKeehan v. State, App. 5 Dist., 838 So.2d 1257 (2003).Criminal Law 403
Trial court's error in admitting oral testimony to establish the contents of a videotape allegedly showingrobbery defendant's participation in other recent robbery, as such violated best evidence rule, was notharmless; jury inquired into absence of the videotape, pivotal issue at trial was defendant's identification,and sole evidence that directly tied defendant to other robbery was testimony by one eyewitness. McKeehanv. State, App. 5 Dist., 838 So.2d 1257 (2003). Criminal Law 1169.10
Allowing witness to testify with assistance of portions of videotape from store where shooting took place,and allowing him to explain to the jury what they were seeing, did not violate best evidence rule, and didnot amount to improper bolstering of witness' testimony, where videotape was compilation of fourvideotapes recorded by store, by different cameras set in multiple locations, and the finished product, asedited, resulted in portions of events being shown in slow motion or repeated. Reid v. State, App. 4 Dist.,799 So.2d 394 (2001). Criminal Law 403; Witnesses 318
Admission of photograph did not violate best evidence rule, where photograph was used only to explaintestimony. Harris v. State, App. 4 Dist., 755 So.2d 766 (2000). Criminal Law 403
Premium finance company's computer printout should not have been excluded under “best evidence” rulein insured's action against insurer and finance company in which insurer raised defense of cancellation;printout was not offered to prove contents of finance company's notice of cancellation, but to prove thatnotice was mailed. Insurance Co. of North America v. Cooke, 624 So.2d 252 (1993). Evidence 169
“Best evidence rule” requires that if original evidence is available, then no evidence should be receivedwhich is merely substitutionary in nature. State v. Eubanks, App. 4 Dist., 609 So.2d 107 (1992). CriminalLaw 398(1)
Best evidence rule did not render inadmissible testimony of arresting officer regarding issuance of trafficticket for expired automobile license tag prior to search of automobile which revealed firearm and cocaine;testimony was not offered to prove that defendant actually had expired license, but, rather, was offered to
explain why officer effectuated traffic stop of defendant. State v. Eubanks, App. 4 Dist., 609 So.2d 107(1992). Criminal Law 398(1)
Best evidence rule did not render inadmissible traffic ticket which arresting officer issued to defendant afterstopping automobile and before searching automobile and finding firearm and cocaine; issue concerningwhich ticket was proffered did not involve contents of ticket, but, rather, involved whether officer hadcause to effectuate traffic stop of defendant. State v. Eubanks, App. 4 Dist., 609 So.2d 107 (1992).Criminal Law 398(1)
Best evidence rule does not apply, and oral evidence is admissible, if matter to be proved is fact that writtenorder was made and delivered and not terms or provisions of order. State v. Eubanks, App. 4 Dist., 609So.2d 107 (1992). Criminal Law 398(1)
Best evidence rule is applicable only to exclude evidence when contents of writing is at issue. State v.Eubanks, App. 4 Dist., 609 So.2d 107 (1992). Criminal Law 398(1)
Best evidence rule is not applicable if proffered writing is not offered to prove truth of matter therein. Statev. Eubanks, App. 4 Dist., 609 So.2d 107 (1992). Criminal Law 398(1)
Under best evidence rule, evidence which itself indicates existence of more original source of informationis to be excluded. State v. Eubanks, App. 4 Dist., 609 So.2d 107 (1992). Criminal Law 400(1)
Since plaintiff did not comply with either § 90.901 requiring authentication or identification of a documentor § 90. 952 requiring submission of originals into evidence, copy of sublease agreement should not havebeen allowed into evidence. E.F.K. Collins Corp. v. S.M.M.G., Inc., App. 3 Dist., 464 So.2d 214 (1985).Evidence 174.3
Where state was free to copy all records in its possession before returning them to owner of records, andin event records for some reason became available in future, copies state had made would be admissibleas evidence in lawsuit under best evidence rule, no grounds existed for quashing circuit court orderrequiring state attorney to return records to owner. State ex rel. Bludworth v. MacDuffee, App. 4 Dist.,407 So.2d 320 (1981). Pretrial Procedure 433
Best evidence rule requires that if original evidence is available, no evidence should be received which ismerely substitutionary in nature and evidence which itself indicates existence of more original source ofinformation is to be included. Sun Bank of St. Lucie County v. Oliver, App. 4 Dist., 403 So.2d 583(1981). Evidence 157(1)
Compilations from company's daily log were admissible, despite best evidence rule, where compilationswere offered for impeachment purposes. Onontario of Florida, Inc. v. R. P. Trucking Co., Inc., App. 4Dist., 399 So.2d 1117 (1981). Witnesses 392(1)
Best evidence rule is not applicable where matter being offered is not used to prove truth of statementscontained therein. Onontario of Florida, Inc. v. R. P. Trucking Co., Inc., App. 4 Dist., 399 So.2d 1117(1981). Evidence 158(1)
Best evidence rule provides that in proving terms of writing, original writing must be produced unless itis shown to be unavailable for some reason other than serious fault of proponent. Williams v. State, 386So.2d 538 (1980). Criminal Law 400(1)
Purpose of best evidence rule is to ensure accurate transmittal of critical facts contained in a writing.Williams v. State, 386 So.2d 538 (1980). Criminal Law 398(1)
Best evidence rule has no application where the object is not to prove the truth of the statement containedin the record, but merely to show such inconsistencies as bear on the general credibility of the witness, orwhere the purpose is to lay a proper foundation for impeachment by introduction of the contradictorymatter in due course of events. Urga v. State, App. 2 Dist., 104 So.2d 43 (1958). Criminal Law 398(1)
The best obtainable evidence should be adduced to prove every disputed fact. Liddon v. Board of PublicInstruction for Jackson County, 128 Fla. 838, 175 So. 806 (1937). Evidence 157(1)
The best evidence rule requires that no substitutionary evidence shall be received if original evidence isavailable. Liddon v. Board of Public Instruction for Jackson County, 128 Fla. 838, 175 So. 806 (1937).Evidence 157(1)
The best evidence rule excludes only that evidence which itself indicates existence of more original sourcesof information, and, where there is no substitution of evidence, but only a selection of weaker proofs or anomission to supply all proofs available, the rule is not impinged. Liddon v. Board of Public Instruction forJackson County, 128 Fla. 838, 175 So. 806 (1937). Evidence 157(1)
In action for injuries sustained in automobile collision which occurred at intersection of two streets in city,permitting chief of police and others to testify as to ordinance containing regulation applicable tointersection was error, since ordinance containing regulation was best evidence and defendants had rightto require plaintiff to prove case by best evidence. Douglass v. Sapotnick, 126 Fla. 753, 171 So. 765(1937). Evidence 157(6)
Where evidence is primary or original in character, it should not be excluded because there might be otherprimary evidence corroborative or stronger and more conclusive. Smith v. State, 71 Fla. 639, 71 So. 915(1916). Criminal Law 398(1)
In an action for the price of goods, the book account was not the best evidence where a witness testifiedthat the order produced by him was the original order for the goods. Butler v. Ederheimer, 55 Fla. 544, 47So. 23 (1908). Evidence 174.2
3. Fact of making or existence of writing
Incidental mention of existence of a written instrument may be made without producing or accounting forabsence of the instrument, where there is no attempt made to prove the contents or legal effect of theinstrument. Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N. Y.,131 Fla. 94, 179 So. 175 (1938). Evidence 159
The existence of writings as a fact may be proved, although they are not produced nor their absence
accounted for. Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N.Y., 131 Fla. 94, 179 So. 175 (1938). Evidence 159
In suit on duebills for teachers' salaries, testimony of superintendent of public instruction, in answer toquestion concerning teachers' employment and amounts of salaries, was not inadmissible on ground thatminutes of board of public instruction were the best evidence in absence of showing that such minutesexisted. Liddon v. Board of Public Instruction for Jackson County, 128 Fla. 838, 175 So. 806 (1937).Evidence 159
Where the matter to be proved is simply the fact that a contract has been made as distinct from its termsand provisions, the best evidence rule does not apply, and parol evidence is admissible. Cox v. State, 87Fla. 79, 99 So. 126 (1924). Criminal Law 400(7)
Best evidence rule does not apply where fact of making of written order is sought to be proved ascontradistinguished from its terms. Camp v. State, 58 Fla. 12, 50 So. 537 (1909). Criminal Law
398(1)
On an issue whether a contract has been made, as distinct from its terms, the best evidence rule does notapply, and parol evidence is admissible. Wilson v. Jernigan, 57 Fla. 277, 49 So. 44 (1909). Evidence
159
4. X-rays
X-ray report prepared by radiologist, who did not testify, was improperly admitted, where sole basis wastestimony of treating physician that he had referred plaintiff for examination and thereafter he received thereport resulting therefrom, but admission of radiologist's report which attempted to establish that plaintiffhad ulcer was not reversible error, since existence of ulcer was clearly established by treating physicianwithout reference to report. Williamson Candy Co. v. Lewis, App. 3 Dist., 144 So.2d 522 (1962). AppealAnd Error 1051(1); Evidence 377
If a physician is appointed by a trial court to make a physical examination and the injured party refusesto permit the physician to make an X-ray examination of her person when such an examination isnecessary, the trial court commits no error in continuing the case because of this action of the injured party.State v. Call, 64 Fla. 144, 59 So. 789 (1912). Damages 206(7)
5. Collateral matters
The principle which requires production of a writing to prove its contents and excludes other proof thereofhas no application when inquiry to contents of the writing comes up collaterally at the trial, and contentsare not directly involved in the controversy. Firestone Service Stores of Gainesville v. Wynn, for Use andBenefit of Home Ins. Co., N. Y., 131 Fla. 94, 179 So. 175 (1938). Evidence 171
Under proper circumstances, secondary or parol evidence of contents of written instrument may be givenwhen original instrument or its contents or legal effect are not directly involved in issues in case, but relatemerely to collateral facts. Hancock v. State, 90 Fla. 178, 105 So. 401 (1925). Criminal Law 401
Parol testimony not purporting to be primary testimony of contents of written instrument and forming partof conversation between witness and another, in presence and hearing of defendant, in which reference wasmade to failure to fulfill provisions of instrument, neither terms, contents, nor legal effect of which wasdirectly involved is admissible. Hancock v. State, 90 Fla. 178, 105 So. 401 (1925). Criminal Law 401
It is not error for the state, in a prosecution for forging a school warrant, to ask the chairman of the countyboard of public instruction how he signed school warrants, it not being possible to introduce in evidenceall the warrants which he had signed, and the question relating to a collateral matter. Wooldridge v. State,49 Fla. 137, 38 So. 3 (1905). Criminal Law 401
6. Transactions, etc., evidenced by writing--In general
Debtor's president's testimony based on personal knowledge that postinsolvency payments were made bydebtor to satisfy past due obligations and that debtor owed money to other creditors at that time did notviolate best evidence rule and it was not necessary to produce books of debtor. In re Mobilift Equipmentof Fla., Inc., 1969, 415 F.2d 841. Evidence 166
Although in courts of law parol evidence is inadmissible to vary the terms of a valid written instrument andsuch instrument will in itself be considered best evidence of what the parties intended, equity has a muchbroader field of action. Spear v. MacDonald, 67 So.2d 630 (1953). Evidence 158(1); Evidence 385
7. ---- Payment or release evidenced by writing, transactions, etc., evidenced by writing
Payment of taxes may be shown by parol, without accounting for the official tax receipt. Boykin v. State,40 Fla. 484, 24 So. 141 (1898). Evidence 158(2)
8. ---- Ownership, possession, or control evidenced by writing, transactions, etc., evidenced by writing
Mortgagee's filing of duplicate copy of mortgage was sufficient to satisfy statutory requirements inforeclosure action, even though mortgagors asserted that original was required to be filed; originalpromissory note was required to be filed to prove mortgagors' indebtedness, but mortgage document wasmerely incidental to proof of indebtedness. Perry v. Fairbanks Capital Corp., App. 5 Dist., 888 So.2d 725(2004). Mortgages 464
Purported purchasers of condominium unit failed to establish they were owners of unit, where purportedpurchasers failed to introduce their deed into evidence and also failed to explain adequately its absence,and only evidence introduced at trial was the original deed showing purported vendor's initial acquisitionof the property. Griem v. Zabala, App. 3 Dist., 744 So.2d 1139 (1999), rehearing denied. Deeds 193
Because a deed gives rise to a legal right, the contents of the deed are being proved, and thus, a deed fallswithin the best evidence rule. Griem v. Zabala, App. 3 Dist., 744 So.2d 1139 (1999), rehearing denied.Evidence 165(1)
An objection is properly sustained to a question on cross-examination of the plaintiff as a witness in herown behalf in an action of replevin, which seeks to elicit her opinion as to whether her right to thepossession of the property in dispute had been tried in a previous action, especially when such question is
not in cross of anything brought out on the direct examination of the witness. Bell v. Niles, 61 Fla. 114,55 So. 392 (1911). Evidence 158(3)
Parol evidence is admissible to prove the ownership of a boat. Leon v. Kerrison, 47 Fla. 178, 36 So. 173(1904). Evidence 158(3)
9. ---- Judicial acts, proceedings, and records, in general, evidenced by writing, transactions, etc.,evidenced by writing
Testimony, which was offered to show that there was sound basis for conclusions of earlier creditinvestigations leading to libelous credit report, that court records existed which confirmed connectionbetween plaintiff and his brother, who was allegedly involved in scheme to default on obligations, wasproperly excluded as not the best evidence of what it purported to prove. Morgan v. Dun & Bradstreet,Inc., 1970, 421 F.2d 1241. Evidence 158(5)
Where Federal Deposit Insurance Corporation brought action as liquidator of bank to collect balance dueon promissory note and guarantee agreement, where FDIC attempted to introduce into evidence copy offederal court order purporting to show that it was appointed as liquidator of assets of bank, wheredefendant objected on ground that order did not comply with former § 92.10 (see, now, this section)governing admission of copies of court records, and where trial court sustained objection and order wasnot admitted, trial court could not consider federal court order in determining whether FDIC had standingto sue. Weisser v. Federal Deposit Ins. Corp., App. 3 Dist., 365 So.2d 1034 (1978). Trial 39
Court records are amendable to extrinsic evidence to make them speak the truth when, as to the truth, theyare silent or imperfect. State ex rel. Cordrey v. Holter, App. 2 Dist., 283 So.2d 139 (1973). Evidence
158(5); Evidence 417(2); Evidence 450(2)
10. ---- Recovery, entry, or enforcement of judgment evidenced by writing, transactions, etc., evidencedby writing
Where the plaintiff's claim rested on an alleged allowance by the judgment or decree of the probate court,the testimony of the judge of probate as to the amount of the judgment was inadmissible, the record beingin existence and accessible. Bellamy v. Hawkins, 17 Fla. 750 (1880). Evidence 158(6)
11. ---- Administration or distribution of estates, facts evidenced by writing, transactions, etc., evidencedby writing
In suit on claim against estate of deceased former executrix under will of her predeceased husband for prorata share of inheritance and estate taxes and costs of administration chargeable under statute to her dowerinterest in estate as widow, records of probate court and returns filed by former executrix in probate ofdeceased husband's estate would be the best evidence of whether she had paid such pro rata share of taxesand costs of administration and former executrix would be estopped from denying the contents of suchrecords and returns. Dacus v. Blackwell, 90 So.2d 324 (1956). Estoppel 2; Evidence 158(11)
12. ---- Official acts, proceedings, and records evidenced by writing, transactions, etc., evidenced bywriting
In action by restaurant owner against deep fat fryer manufacturer for damages from fire that originatedin allegedly defective fryer and totally destroyed restaurant, volunteer fire department captain's testimonyon direct examination relating to requirement of county fire code, whether captain was reporting to statewhat he had read in code or had heard from others, was objectionable in first instance, and thus owner'sfailure to make timely objection resulted in such point on appeal not being properly reserved for review.Dowd v. Star Mfg. Co., App. 3 Dist., 385 So.2d 179 (1980), petition for review denied 392 So.2d 1373.Appeal And Error 230
Where minutes of town commission were silent as to what was done, if anything, on deletion of referenceto dogs and cats from ordinance prohibiting specified activity upon breach or shoreline within town limits,former councilman's testimony that such deletion of reference to dogs and cats had been made prior to finalpassage of the ordinance was admissible over best evidence objection in mandamus action to compel townofficials to enforce alleged prohibition in the ordinance of allowing dogs upon town beaches. State ex rel.Cordrey v. Holter, App. 2 Dist., 283 So.2d 139 (1973). Evidence 158(15)
In suit to enjoin enforcement of order of milk commission, the record as filed in office of secretary of statewas paramount proof of question whether order had been adopted by the milk commission as long as thatrecord and record in injunction suit did not show evidence of equal dignity that record filed in office ofsecretary of state was false. Milk Commission v. Dade County Dairies, 145 Fla. 579, 200 So. 83 (1940).Evidence 158(15)
13. ---- Acts of municipal boards evidenced by writing, transactions, etc., evidenced by writing
Minutes of village council meetings were best evidence of action of vilings and statements by certain adlageat such meetings in refusing to renew taxicab permits, and testimony relative to discussions at suchmeet-ministrative officials of village was properly excluded in determining whether village should beenjoined to renew permits. North Beach Yellow Cab Co. v. Village of Bal Harbour, App. 3 Dist., 135So.2d 4 (1961). Evidence 158(17)
14. ---- Corporate acts, proceedings, and records evidenced by writing, transactions, etc., evidenced bywriting
In action on promissory note, best evidence objection to bookkeeper's testimony that she had revieweddeposit slips, books, and records of company and had failed to find any evidence to indicate that debtor hadreceived credit for any money on which he signed note was well taken as best evidence in case would becompany records and only after their admission would bookkeeper's testimony as to her findings be proper.Sun Bank of St. Lucie County v. Oliver, App. 4 Dist., 403 So.2d 583 (1981). Evidence 158(26)
Action taken at meeting of directors of corporation may be proved by parol evidence, if no minutes are keptor record is incomplete. Redstone v. Redstone Lumber & Supply Co., 101 Fla. 226, 133 So. 882 (1931).Evidence 158(26)
In an action against a railroad company for killing plaintiff's mule, the oral testimony of one of defendant'semployees as to the accident is not to be excluded, on the ground that he made a contemporaneous writtenreport to defendant, as required to do by its regulations, and that such report is the best evidence in the
premises. Jacksonville, T. & K.W. Ry. Co. v. Wellman, 26 Fla. 344, 7 So. 845 (1890). Evidence158(26)
15. ---- Conveyances, contracts, and other instruments evidenced by writing, transactions, etc., evidencedby writing
Statute of frauds did not bar admission of copies of contracts for sale of motel in proceeding for damageswhich motel owner allegedly sustained because of erroneous lis pendens since motel owner did not bringsuit to enforce contracts themselves, and copies of contracts may have been admissible, upon furtherhearing, under best evidence rule. Saporito v. Madras, App. 5 Dist., 576 So.2d 1342 (1991). Frauds,Statute Of 122.5
Health and Rehabilitative Services' failure to introduce voluntary agreement with mother into evidence, independency proceeding, violated best-evidence rule, and thus, HRS intake supervisor should not have beenpermitted to testify as to contents of agreement, where issue at dependency hearing directly involved termsof agreement, and agreement was available for production at hearing. J.H. v. State, App. 1 Dist., 480So.2d 680 (1985). Infants 173.1
In subsidiary corporation's action based on allegation that its former officer was engaging in a continuousbreach of covenant not to compete with parent corporation or its affiliates, exclusion of other corporateofficers' testimony as to “affiliate” status of the two corporations on basis of “best evidence” rule waserror, in light of fact that there was no issue as to content of any document and that former officer did notdirectly deny the affiliate status of plaintiff corporation. Gory Associated Industries, Inc. v. Griffin, App.4 Dist., 397 So.2d 1054 (1981). Evidence 158(26)
That a certificate of entry of lands at the land office had been issued, and had been assigned by thepurchaser, cannot be shown by parol testimony, unless it is first shown that the certificate has been lostor destroyed, or is in possession of the adverse party. Groover v. Coffee, 19 Fla. 61 (1882), appeal afternew trial 20 Fla. 64, reversed 8 S.Ct. 1, 123 U.S. 1, 31 L.Ed. 51. Evidence 158(27)
16. ---- Books of account, private memoranda, and correspondence, transactions, etc., evidenced bywriting
Under burglary policy excluding liability unless insured keeps books and accounts in such manner thatexact amount of loss can be accurately determined by insurer, amount of loss where books and records arekept may be proved by parol evidence. General Acc. Fire & Life Assur. Corp. v. Schero, 1945, 151 F.2d825. Evidence 158(28)
Testimony of workmen's employer and superintendent that work was done and bill correct wasinadmissible, in absence of foundation. The Erma S., D.C.Fla.1926, 14 F.2d 696. Evidence 158(28)
In an action on an account stated, where the issue is as to the acquiescence of the other party in thecorrectness of the account, it is not necessary to produce the books of original entry, from which theaccount was made up. Jacksonville, M. & P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, 16 So. 898 (1895).Evidence 158(28)
Proffer at trial of industrial commission scaffold construction safety standard by offering into evidencecommission pamphlet containing the safety regulations was not insufficient for want of proper form. Alfordv. Meyer, App. 1 Dist., 201 So.2d 489 (1967), certiorari denied 209 So.2d 671. Trial 45(1)
Industrial commission index card of claim was public record kept by authorized officer as convenient andappropriate mode of discharging duties and functions of office, and would be admissible in evidence under“public record” exception to hearsay rule and would constitute prima facie evidence of what it purportedto show, and duly certified copy thereof would be admissible under statute. Corbett v. Berg, App. 3 Dist.,152 So.2d 196 (1963). Evidence 333(1); Evidence 341; Evidence 383(3)
18. Corporate instruments
Where secretary and treasurer of a corporation testifies that it is his duty as such to have custody of all itsdeeds and documents, and that he has not in his possession the original of a certain deed to it, or a certaindeed belonging to it, and that he did not know where it was, there is a sufficient showing to permitsecondary evidence of contents of such document. Clark v. Cochran, 79 Fla. 788, 85 So. 250 (1920).Evidence 184
A certified copy of a deed of conveyance executed in 1885 by a Florida corporation, under its corporateseal, signed by its president, and acknowledged by him before a proper officer, is admissible, even thoughattested by but one witness. Norman v. Beekman, 58 Fla. 325, 50 So. 876 (1909). Evidence 343(8)
19. Insurance policies
In suit brought by judgment creditor of an insured of defendant, alleging wrongful refusal by defendant topay the judgment, the trial judge did not abuse his discretion in admitting into evidence a copy of theinsurance policy, as opposed to the countersigned original policy, in view of the insured's testimony thathe had taken the original policy to his attorney some years before the trial, that the attorney had left town,and that his efforts to contact him had been unsuccessful, and in view of the fact that the insured obtaineda copy of the policy from the sources which included the defendant. Pennsylvania Nat. Mut. Cas. Ins. Co.v. Burns, App. 2 Dist., 375 So.2d 302 (1979). Evidence 181
In suit brought by judgment creditor of an insured of defendant, alleging wrongful refusal by defendant topay the judgment, the trial court abused its discretion in refusing to admit into evidence on behalf ofdefendant the copy of a policy endorsement deleting coverage of the vehicle involved in the accident, eventhough the copy was not signed, since carbon copies destined for business records are customarily notsigned, the copy was kept in the regular course of business, and there was thus no indication of unreliabilityupon which to base exclusion of the copy, and since, furthermore, a sufficient predicate for admission wasalso laid under the Uniform Business Records as Evidence Act (§ 92.36; repealed). Pennsylvania Nat. Mut.Cas. Ins. Co. v. Burns, App. 2 Dist., 375 So.2d 302 (1979). Evidence 351
20. Election returns and certificates
So long as returns and certificates of election inspectors stand unchallenged, these returns and certificates
are the best evidence of what the result of the count of votes was; but where returns and certificates ofelection inspectors have been duly challenged, and facts have been shown in evidence or are admitted bypleadings, which impeach the reliability of such returns and certificates as evidence, because of somesubstantial failure on the part of the election officers to proceed according to law in making or arriving attheir returns and certificate, the ballots themselves then become the best evidence of how the electors voted,and such ballots may be examined by the court as original evidence, when necessary to verify the accuracyof the returns. State v. Smith, 107 Fla. 134, 144 So. 333 (1932).
21. Hospital records
In action for death, hospital record showing time of admission to hospital of injured person, was notadmissible, to establish time of accident, as public record or as private record made in regular course ofbusiness, where statute relating to hospital records did not require exact time of admittance to be part ofrecord, and person making record was unidentified floor nurse, and it was not shown that entry was madecontemporaneous with transaction recorded or that nurse making record was authorized to do so. FloridaPower & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938). Evidence 351
22. Inventory copies
In action on fire policy, it was error to admit, as an inventory of goods claimed to have been burned, sheetsof paper containing items copied by one person from slips made by others, not verified or supported byoriginal data or by testimony that inventory was in fact taken of stock actually on hand or was a correctstatement of stock and its value. Dixie Fire Ins. Co. v. Hillsborough Dry Goods Co., 77 Fla. 250, 81 So.446 (1919). Evidence 370(4)
23. Legislative records
On showing by certified copies of entries in Legislature's official journals that statute was constitutionallypassed, striking answer alleging contrary was proper. Jackson Lumber Co. v. Walton County, 95 Fla. 632,116 So. 771 (1928), appeal dismissed 49 S.Ct. 338, 296 U.S. 667, 73 L.Ed. 1011. Evidence 387(2)
Copy of original committee substitute for Senate bill, with amendments thereto, and minority report ofconference committee, certified by Secretary of State, under his official seal, as copies of original papers,were proper evidence. Gwynn v. Hardee, 92 Fla. 543, 110 So. 343 (1926). Evidence 341
24. Minutes of meetings
In suit on duebills for teachers' salaries, testimony of superintendent of public instruction, in answer toquestion concerning teachers' employment and amounts of salaries, was not inadmissible on ground thatminutes of board of public instruction were the best evidence in absence of showing that such minutesexisted. Liddon v. Board of Public Instruction for Jackson County, 128 Fla. 838, 175 So. 806 (1937).Evidence 159
25. Moving pictures
Moving picture film to be competent evidence must be properly authenticated and shown to be faithful
representation of the subject, sound, movement, or other tangible or intangible thing which they purportto reproduce, and upon such showing being made, moving picture film should be admitted under the samerules as photographs. Gulf Life Ins. Co. v. Stossel, 131 Fla. 127, 179 So. 163 (1938). Evidence
359(6); Evidence 380
Procedure for admitting moving picture films in evidence does not require in all cases that commissionerbe appointed to make the moving picture film after notice and opportunity to be present has been affordedopposing counsel, and if in judgment of either litigant notice and appointment of a commissioner shouldnot be availed of, litigant may proceed in manner deemed by him advisable. Gulf Life Ins. Co. v. Stossel,131 Fla. 127, 179 So. 163 (1938). Evidence 359(6)
26. Negotiable instruments
In action brought against drawer of drafts payable through bank to clients and attorney as copayees basedon claim that drawer had converted drafts by authorizing bank to make payment to attorney without clients'endorsement on drafts, attorney's statement that all clients had executed written authorizations wasincompetent under best evidence rule where each client denied execution of authorization and insurer failedto demonstrate that appropriate search for documents had been conducted. The Florida Bar v. Allstate Ins.Co., App. 3 Dist., 391 So.2d 238 (1980), petition for review denied 399 So.2d 1140. Evidence 158(2)
27. Promissory notes
Where promise to pay note was part of complete agreement consisting of unconditional promise to makesuch payment and pledge of security therefor, admitting certified copy of agreement in lieu of original noteand mortgage, because of inability to produce originals, in foreclosure hearing before master was notreversible error, especially where bill of complaint alleged ownership of note and mortgage in complainantand such allegation was not traversed. Johns Supply Co. v. McNeeley, 125 Fla. 306, 169 So. 732 (1936).Evidence 177
Where promise to pay note was part of complete agreement consisting of unconditional promise to makesuch payment and pledge of security therefor, certified copy of agreement introduced because of inabilityto produce original note and mortgage was not inadmissible in foreclosure hearing before master on groundthat there was a separate note for which mortgage was given as security. Johns Supply Co. v. McNeeley,125 Fla. 306, 169 So. 732 (1936). Evidence 179(1)
Where promise to pay note was part of complete agreement consisting of unconditional promise to makesuch payment and pledge of security therefor, mortgage part of agreement could not be considered as mereincident to note in determining whether certified copy of agreement was admissible in foreclosure hearingbefore master because of inability to produce original note and mortgage, since the whole instrument mustbe construed together. Johns Supply Co. v. McNeeley, 125 Fla. 306, 169 So. 732 (1936). Evidence
179(1)
28. Public health certificates
Report of state board of health on specimen of sputum which was regularly taken and mailed to board isprima facie evidence of what it purports to be, and if its verity is to be overthrown, duty is on one
challenging it to do so. Mutual Life Ins. Co. of New York v. Knight, 130 Fla. 733, 178 So. 898 (1937).Evidence 383(4)
29. Waiver and estoppel
Invocation of best evidence rule against police officer testifying to defendant's statements could not bedeemed waiver of defendant's right that tape of his statements introduced into evidence be authenticated.Justus v. State, 438 So.2d 358 (1983), certiorari denied 104 S.Ct. 1332, 465 U.S. 1052, 79 L.Ed.2d 726.Criminal Law 695(5)
A party is estopped to object that a writing was not put in evidence, if he has asked for instructions whichassume that it had been put in evidence. Hooker v. Johnson, 10 Fla. 198 (1860). Trial 75
30. Preservation of issues for review
Defendant preserved for appeal argument that trial court erred in admitting store manager's testimonyconcerning contents of surveillance recording in defendant's trial for grand theft of DVDs from video store,notwithstanding that defense counsel did not specifically name “best evidence rule” as basis for objectionwhen he objected to manager's testimony, as statute regarding admission of content of writings orrecordings was not titled or specifically referred to as “best evidence rule.” Dyer v. State, App. 4 Dist.,26 So.3d 700 (2010). Criminal Law 1036.4
West's F. S. A. § 90. 952, FL ST § 90. 952
Current through Chapter 274 (End) of the 2010 Second Regular Session of the Twenty-First Legislatureand Chapter 283 of the 2010 Special "A" Session of the Twenty-Second Legislature.
(C) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
