10: Contents of writings, recordings, and photographs

Question 1

Best evidence rule

Answer 1

The best evidence rule—also known as the original document rule—requires that the original document (or a reliable duplicate) be produced to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.

This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.

Question 2

Best evidence rule: exceptions

Answer 2

A party may introduce other evidence if the original is:

(1) Unavailable;
(2) A public record, i.e., a certified copy will suffice;
(3) A chart or summary representing voluminous writings, although originals or duplicates must be made available by the other party, OR;
(4) An admission by a party: in court, by deposition, or by a written statement.

Question 3

Best evidence rule: unavailability exception

Answer 3

A party may introduce other evidence if the original is:

(1) Lost or destroyed, unless done by the proponent in bad faith;
(2) Unobtainable by judicial process, OR;
(3) The party against whom the document is introduced:
(a) had control over the original AND;
(b) knew that it was going to be at issue at trial.

Question 4

Best evidence rule: collateral issues exception

Answer 4

The original document rule does not apply if the contents of the document are not closely related to a controlling issue.

Question 5

Best evidence rule: adverse party’s admission

Answer 5

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered.

The proponent need not account for the original.

Question 6

Best evidence rule: duplicates

Answer 6

A duplicate is admissible to the same extent as an original unless:

(1) there is a genuine question as to the authenticity of the original, or;
(2) The circumstances make it unfair to admit the duplicate.

Question 7

Best evidence rule: writings, recordings, and photographs

Answer 7

Writings: Letters, words, numbers, or their equivalent set down in any form.

Real physical evidence is not subject to the best evidence rule.

Question 8

Best evidence rule: failure to locate a public record

Answer 8

The best evidence rule does not apply to testimony about an unsuccessful effort to locate a public record, since no record is being introduced into evidence.

Question 9

Best evidence rule: contents established by admission

Answer 9

The party seeking to prove the contents of a document need not produce the document if its contents are established by an admission, at a deposition, of the party against whom the evidence is offered.