Best Evidence Rule

Question 1

The Basics

Answer 1

The Best Evidence Rule is a misnomer because there is actually no rule that requires a party to put on its “best evidence.” Rather, the Best Evidence Rule provides that when a party is attempting to prove the contents of a writing, recording, or photograph, there is a preference for the original. The preference for the original is intended to reduce the risks of fraud, forgery or mistake.

Question 2

FRE 1001(a) Definitions That Apply to This Article

Writing

Answer 2

A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

Question 3

FRE 1001(b) Definitions That Apply to This Article

Recording

Answer 3

A “recording” consists of letter, words, numbers, or their equivalent recorded in any manner.

Question 4

FRE 1001(c) Definitions That Apply to This Article

Photograph

Answer 4

A “photograph” means a photographic image or its equivalent stored in any form.

Question 5

FRE 1001(d) Definitions That Apply to This Article

Original

Answer 5

An “original” of a 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 electrically stored information, “original” means any printout – or other output readable by sight – if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

Question 6

FRE 1001(d) Definitions That Apply to This Article

Duplicate

Answer 6

A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or equivalent process or technique that accurately reproduces the original.

Question 7

Writings v. Chattel

Answer 7

Courts have identified four factors for distinguishing writings from chattel, the latter falling outside the Best Evidence Rule

• The complexity of the content
• The likelihood of fraud
• The centrality of the content to the case
• The practical difficulty of producing the item in court

Question 8

FRE 1002 Requirement of the Original

Answer 8

An original writing, recording or photograph is required in order to prove its contents unless these rules or a federal statute provide otherwise

Question 9

FRE 1003 Admissibility of Duplicates

Answer 9

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

Question 10

Unfair Circumstances

Answer 10

Circumstance that make it unfair could be the proponent could only have part of a document so the other party and the court couldn’t examine the whole document.

Question 11

FRE 1004 Admissibility of Other Evidence of Content

Answer 11

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

1. All the originals are lost or destroyed, and not by the proponent acting with bad faith
2. An original cannot be obtained by any available judicial process
3. The party against whom the original would be offered had control of the original; was at the time put on notice, by pleadings or otherwise, that the original would be subject to proof at the time of trial or hearing, and fails to produce it at the trial or hearing or
4. The writing, recording, or photograph is not closely related to a controlling issue

Question 12

FRE 1005 Copies of Public Record to Prove Content

Answer 12

The proponent may use a copy to prove the content of an official record – or of a document that was recorded or filed in a public office as authorized by law – if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, the proponent may use other evidence to prove its content.

Question 13

FRE 1006 Summaries to Prove Content

Answer 13

The proponent may use a summary, chart, or calculation to prove the contents of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examining, copying, or both, by the other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Question 14

FRE 1007 Testimony or Statement of a Party to Prove Content

Answer 14

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 15

FRE 1008 Function of the Court or Jury

Answer 15

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rules 1004 and 1005. But in a jury trial, the jury determines – in accordance with Rule 104(b) – any issue about whether

1. An asserted writing, recording or photograph ever existed
2. Another one produced at the trial or hearing is the original or
3. Other evidence of content accurately reflects the content