Best Evidence Doctrine

Question 1

What is the Best Evidence Doctrine?

Answer 1

The best evidence is the original document/recording/photo/video, not a copy (unless there is an applicable exception).

Question 2

What is the Incidental Recording Rule?

Answer 2

The Best Evidence Rule applies ONLY to the contents of writing, not the testimony of the writer.
Testimony is better than documents.

Question 3

Are duplicates of evidence allowed in?

Answer 3

Yes, unless there is a genuine question raised as to the original’s authenticity OR circumstances make it unfair to admit the duplicate

Question 4

When can the Best Evidence Rule be waived?

Answer 4

1. Original lost/destroyed through no fault of the proponent
2. Original could not be obtainted
3. Original in the possession of the opponent who has refused to make it availible
4. Writing/photograph/recording in question is NOT closely related to a controlling issue

Question 5

Does the Best Evidence Rule apply to public records and certified copies?

Answer 5

No.

Question 6

How do you determine if a public record is okay for the Best Evidence Doctrine?

Answer 6

1. Records are otherwise admissable and certified in accordance with 902(4)
2. Testified to be correct by a witness who compares the copy to the original
3. no copy can be obtained through reasonable diligance, then the proponent can use other evidence to prove the contents

Question 7

What do summaries for voluminous records require?

Answer 7

1. Originals are availible to opponents
2. Originals must be admissible
3. Summaries must be authenticated
4. Illustrative aids are NOT covered (new Dec 2024)

Question 8

When can a jury determine the authenticity of a document?

Answer 8

Juries can determine whether:
1. the asserted wrigint/recording/photograph ever existed
2. another document produced at the trial is the original or not
3. other evidence of contents accurately reflects the contents