The Top Five: The Best Evidence Rule

The Best Evidence Rule is a rule of evidence that requires that to prove the terms of a writing, the original writing must be offered into evidence. Only upon proof that the original (or a duplicate of the original) is unavailable will secondary evidence be admissible.

Five things to know about The Best Evidence Rule:

(1): The term writing is far broader than what might be expected. Writing here includes a document (for example, a contract), a recording, a photograph or an X-ray.

(2): The rule does not apply whenever one wants to testify about a document; rather, it applies only in two situations. The first is when the document is a legally operative or dispositive instrument, and the second is when knowledge of a witness concerning a fact of consequence results from having read it in the writing.

(3): On a similar note, the rule does not apply where a fact to be proved has an existence independent of the writing. For example, if a witness wants to testify for the purpose of proving that a contract exists (rather than for the purpose of proving the contents of the contract), then the Best Evidence Rule does not apply, and secondary evidence may be admitted even though the contract itself is available.

(4): A photocopy is deemed to be a duplicate, and therefore treated the same as an original. Copies made by hand, however, are deemed secondary, and may only be admitted if the original is unavailable.

(5): If the original (or duplicate) cannot be produced, secondary evidence is allowable. Secondary evidence can consist of anything from oral testimony to handwritten copies of an original document. It's required, however, that a satisfactory explanation is provided as to why the original is unavailable. Some potential explanations are that the original has been destroyed, is outside the jurisdiction of the court, or is in the possession of an adversary who refuses to produce it for purposes of evidence.