3. Best Evidence Rule

Question 1

A party who seeks to prove the contents of a writing must either:

Answer 1

Produce the original writing, or provide an acceptable excuse for its absence.

If the court finds the excuse is acceptable, the party may then use secondary evidence—oral testimony or a copy.

Question 2

What is considered a “writing?”

Answer 2

The definition of writing includes sound recordings, X-rays, and films.

Question 3

When best evidence rule does not apply:

Answer 3

When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Question 4

What qualifies as the “original writing”?

Answer 4

1. Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; printout of computer-stored data.
2. Duplicate—any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy).

Question 5

Rule on duplicates:

Answer 5

Duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.

New York Distinction: Photocopies are acceptable as substitutes for the original only if made in ordinary course of business.

Question 6

Excuses for non-production of original

Answer 6

1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process

Question 7

“Escapes” from the Requirements of the Best Evidence Rule

Answer 7

1. Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of public records
3. Collateral Documents - If court, in its discretion, determines writing is unimportant to the issues in the case, contents may be proven by secondary evidence.