The Best Evidence Rule

This post will outline everything you've ever wanted to know about the Best Evidence Rule (and probably plenty that you've never wanted to know). 

The best place to start is with the rule itself: An original writing, recording, or photograph is generally required in order to prove its contents. A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or if the circumstances make it unfair to admit the duplicate.

Some definitions, therefore, are needed: 

Writing: Letters, words, numbers, or their equivalents set down in any form.

Recording: Letters, words, numbers, or their equivalents recorded in any manner.

Photograph: A photographic image or its equivalent stored in any form.

Original: An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by any person who executed or issued it. For electronically stored information, the original is any output readable by sight (provided it accurately refects the information). For a photograph, an original includes the negative or a print from it. 

Duplicate: A duplicate is the counterpart produced by the mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reflects the original.

Understanding the general rule is helpful, but, as anyone who has spent any time studying the MBE will realize, when there are exceptions to the general rule, those exceptions are often tested. Let's discuss some of those exceptions. 

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if all of the originals are lost or destroyed and if that is not due to an intentional act (bad faith) on the part of the proponent (the party offering the evidence). Likewise, an original is not required if the original cannot be obtained by any available judicial process. An original is likewise not required if the party against whom the original would be offered has control of the original, was at the time put on notice (by pleadings or otherwise) that the original would be a subject of proof at the trial or hearing, and fails to produce it at trial or hearing. Lastly, an original is not required if the writing, recording, or photograph is not closely related to a controlling issue. 

Sometimes, offering a large number of writings, recordings, or photographs simply might not be practical. In such cases, a summary, chart, or calculation may be used to prove the content of voluminous writings, recordings, or photographs. Even so, the proponent must make the originals (or duplicates of the originals) available for examination or copying by other parties at a reasonable time and place. 

The proponent of a writing, recording, or photograph may prove the content of that writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. Importantly, when offering the evidence in this manner, the proponent need not account for the original. 

Last bit to note is that, ordinarily, the court determines whether the proponent has fulfilled the conditions for admitting other evidence of writings, recordings, and photographs when an original is not required. In a jury trial, the jury determines whether a writing, recording, or photograph ever existed; whether one produced at trial is an original; and whether when offering evidence other than the original, that other evidence accurately reflects the content of the original.