Foundation of “Lost” Document — Wigmore on Evidence

The biggest mistake most people make is not knowing basic rules of evidence. That is why I cover it in my manuals, seminars and books. Here is Wigmore on evidence which I stumbled across while looking for something else. The basic thrust is that the burden of proof increases geometrically on a party wishing to prove up the contents of a document that is not present in court. Testimony from a “copy” is inadmissible. Testimony is inadmissible unless it comes from a witness accepted by the court — not some lawyer lathering up his mouth and using finesse to escape the rules of evidence. Every witness must be sworn, must have personal knowledge of the contents, must remember it ALL and be able to communicate it with specificity such that a court could rule without the court creating a document that had never been in existence before the evidentiary hearing.

As soon as the Lawyer starts talking you should probably be objecting since he is not sworn, not a witness and never will be.

Wigmore on Evidence
Chapter 73. Verbal Completeness
I. Must The Whole of The Utterance be First Offered by The Proponent?
B. Documents
§ 2105. (b) Document lost or destroyed: (1) Deeds, letters, contracts, abstracts, etc.; substance of the material parts suffices.

“In dealing with the general principle requiring the production of a documentary original if it is available, it has already been seen (§ 1267 supra) that testimony based on recollection is an allowable mode of proof for lost documents, though for some kinds of documents testimony by copy is preferred if it can be had (§§ 1268-1272 supra). Assuming, then, that there is no prohibition of any qualified witness to the contents of a lost or destroyed document, the question arises, under the present principle… (a) As to entirety of parts, it is clear that for documents having in themselves a legal effect — such as deeds and contracts — all the material parts must be established by the testimony to contents. It would be imprudent to act judicially upon a part of a document whose material effect must depend equally upon other and missing parts. This practice, doubtless, would sometimes leave honest rights unenforceable because their tenor is unknown; but this contingency is preferable to …”

So what this means is that an affidavit that is sworn must be the “testimony” of a witness accepted by the court who has personal knowledge and is not reporting what was told to them by someone else and not be reporting what they read in another document.

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