Best Evidence Rule

Question 1

The best evidence rule (

Answer 1

•

Question 2

What Is the Best Evidence (AKA the original document rule)

Answer 2

requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.

Question 3

What are writing and recording?

Answer 3

Writing -

• letters,
• words
• numbers or their equivalent set down in any form

A “recording” and “photograph” are similarly broadly defined.

An “original” of a photograph includes the negative and any print made from it…made directly from the camera.

Question 4

When does the Best Evidence Rule apply?

Answer 4

ONLY when
1. the contents of the document are at issue OR

2. a witness is relying on the contents of the document when testifying

Question 5

Separate issue of authentication

Answer 5

All tangible evidence, including photographs, must be authenticated before admitted into evidence.

Real evidence may be authenticated by testimony, by distinctive markings, or by chain of custody;

documentary evidence may be authenticated in several ways, including by proof.

Question 6

When is an original not required?

Answer 6

1. All of the originals are lost or destroyed, and so long as it was not by the proponent acting in bad faith;
2. The original cannot be obtained by any available judicial process;
3. The party against whom the original would be offered (a) had control of the original, (b) was at that time put on notice that the original would be the subject of proof at the trial or hearing, and (c) failed to produce it at the trial or hearing; or
4. The writing, recording, or photograph is not closely related to a controlling issue (i.e., it is a collateral matter).