Best Evidence Rule

Question 1

General Best Evidence Rule

Answer 1

An original writing, recording, or photograph is required in order to prove its content, unless these rules provide otherwise.

Two Main Situations when this requirement applies:

1) the writing is a legally operative or dispositive document (contracts, deeds, wills, divorce decree, judgments)

2) the witness’s knowledge about a fact results from having read it in a document, seen it in a photo, or heard it from a recording.

Question 2

Original

Answer 2

An original writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, original means any printout, or another duplicate readable by sight, if it accurately reflects the information. An original photograph includes the negative or a print from it.

Question 3

Duplicates

Answer 3

A duplicate is admissible to the same extent as an original unless a genuine question is raised about the original’s authenticity or circumstances make it unfair to admit the duplicate.

A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately produces the original. (photograph of an original document)

Question 4

Admissibility of Secondary Evidence (best evidence rule)

Answer 4

an original is not required and other evidence of a writing, recording, or photograph is admissible if

1) all the original are lost or destroyed, and not by the proponent acting in bad faith; or

2) an original cannot be obtained by any judicial process; or

3) the original is in the possession of an adversary who, after due notice, fails to produce the original.

Question 5

Exceptions to Best Evidence Rule

Answer 5

Summaries of Voluminous Records - When it would be inconvenient to examine a voluminous collection in court, the proponent may present the content in a chart or summary, but the proponent must make the originals or duplicates available for inspection of copying, and the court may order the proponent to product the records in court.

Certified Public Records - the rules does not apply to copies of public records that are certified as correct to testified to as correct

Collateral to Litigation - The rule does not apply where the writing is of minor importance to the matter in controversy

Opponent Statements - where the opponent has given testimony, a deposition, or a written admission about the writing’s contents, the prosecution may use this evidence and need not given an excuse for non-production of the original.