Assumes Best Evidence Applies To Refresh
This trap appears as a wrong-answer choice in 1 active question. Spotting how it is built is the repair: read each example's “why it's attractive” before the “why it's wrong.”
Subject distribution
- Evidence1
Example wrong choices
14904_best_evidence_refresh · EVIDENCE · Choice ANo, because a printed transcript cannot be used without a showing that the original notes are unavailable.
Why it's attractive
It sounds like a plausible procedural requirement — many students assume you need to explain why you don't have the original before using a copy. The backwards phrasing feels like a rule, and students who memorized 'original required' without understanding the exceptions may latch onto this.
Why it's wrong
Reverses the duplicate rule — FRE 1003 admits duplicates without unavailability showing; unavailability is required only for non-duplicates under FRE 1004.
Spot it next time
Review FRE 1003: duplicates are admissible without unavailability. Unavailability is for non-duplicates under FRE 1004.
14904_best_evidence_refresh · EVIDENCE · Choice BNo, because the court reporter has not testified to the accuracy of the transcript.
Why it's attractive
It invokes a real-sounding accuracy requirement that seems to protect the defendant's rights. Students who vaguely recall that someone must verify a transcript's accuracy may pick this without realizing it describes a different doctrine (past recollection recorded).
Why it's wrong
Confuses refreshing recollection with past recollection recorded. Under FRE 612, a document used to refresh memory need not be accurate — the testimony is the evidence.
Spot it next time
Review the distinction between FRE 612 refresh (any document, no accuracy required) and past recollection recorded (accuracy required).
14904_best_evidence_refresh · EVIDENCE · Choice DYes, because a printed transcript is a duplicate of the original notes.
Why it's attractive
It states a true legal rule — duplicates ARE admissible under FRE 1003 — which makes it feel correct. But it assumes the best evidence rule applies, which it doesn't. Students who spot the true statement may stop analyzing and pick it without checking whether the rule is relevant.
Why it's wrong
States a true rule about duplicates (FRE 1003) but assumes the best evidence rule applies. The best evidence rule is irrelevant when the document is used to refresh recollection under FRE 612.
Spot it next time
Before applying FRE 1003, ask: is the party proving document contents? If not, the best evidence rule is irrelevant.
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