The Best Evidence Rule

Question 1

What is the best evidence rule?

Answer 1

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

1. Produce the original writing; or
2. Provide an acceptable excuse for its absence

Question 2

If the court finds that an excuse for the absence of an original writing is acceptable, how may the contents of the writing be proven?

Answer 2

1. By oral testimony; or

2. A copy of the original

Question 3

What is included in the definition of a writing?

Answer 3

Sound recordings, X-Rays, and films

Question 4

What are the two primary situations in which the best evidence rule applies?

Answer 4

1. The writing is a legally operative instrument (does not include transcripts)
2. A witness is testifying to facts learned solely from reading about them in a writing

Question 5

T is charged with detonating a bomb. No one witnessed the detonation, but it was captured on film by an unmanned surveillance camera. B testifies that he watched the film and it clearly shows T was the bomber. Objectionable?

Answer 5

Yes. B has no personal knowledge of the bombing. If no personal knowledge of what is shown in the “writing,” you must produce the writing.

Question 6

When does the best evidence rule not apply?

Answer 6

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

Question 7

What qualifies as the original writing?

Answer 7

1. Whatever the parties intended
2. Negative of film or print from negative
3. Printout of computer-stored data

Question 8

What is a duplicate?

Answer 8

Any counterpart produced by mechanical means that accurately reproduced the original

Question 9

What is the rule regarding duplicates? **

Answer 9

Admissible as if original unless it would be unfair or there is genuine question of authenticity of original

NY - Photocopies are acceptable only if made in regular course of business

Question 10

What are acceptable excuses for non-production of the original?

Answer 10

1. Lost or cannot be found with due diligence
2. Destroyed without bad faith
3. Cannot be obtained with legal process

Question 11

When can you “escape” the requirements of the best evidence rule?

Answer 11

1. Voluminous material can be presented by summary
2. Certified copies of public records
3. Collateral documents (if OKed by judge)