The Best Evidence Rule is also commonly referred to as the original document rule. The Best Evidence Rule requires that the proponent seeking the admission of evidence show the documentary evidence is the original version. The Best Evidence Rule applies when the terms of the writing are material and at issue. The Best Evidence Rule also applies when a witness testifies as to a fact resulting from having read it in the document sought to be admitted by the proponent.

Duplicate vs. Original

An original document is usually required for compliance with the Best Evidence Rule. The easiest way to comply with the Best Evidence Rule is by providing an original document. An original document is a document that was the first one prepared, signed, or recorded or a negative of a picture. However, a duplicate may also be admitted for compliance with the Best Evidence Rule. A duplicate is defined as an exact copy of the original document. Duplicates are generally admissible in federal court unless the opposing party challenges the authenticity of the document.

To qualify a document as a duplicate at common law, the proponent must have the witness testify to following elements:

    • Recognizes the writing.
    • Specifies the basis for her recognition.
    • The document is a copy of the original.
    • The parties made the copy at the time the original was executed.
    • The parties intended the copy to have the same effect as the original.
  • The parties executed both the original and copy at the same time.

Best Evidence Rule Does Not Apply

The Best Evidence Rule does not apply in all situations involving a writing that contains material issues. The Best Evidence Rule does not apply to the following situations:

    • Public Records.
    • Summaries of Voluminous records.
    • Documentary evidence that is collateral to the litigated issue.
  • Fact or issue sought to be proved may be proved without reference to the documentary evidence.

Secondary Evidence

Secondary evidence may be presented by a proponent seeking to comply with the Best Evidence Rule. Secondary evidence may only be used if evidence shows that the writing is an original or duplicate or if an adequate excuse is presented explaining the proponent's non-production of the original document. Excuses for non-production of an original document include:

    • Lost original.
    • Accidentally destroyed original.
    • Original in official custody.
    • Third person in custody of the document is outside of the court's jurisdiction.
    • Party opponent has the original and has failed to turn it over to the proponent.
  • Voluminous Bulky Records.

An authenticated copy of a document or oral recollection of the contents of a document constitutes types of secondary evidence. The proponent may prove the contents of a writing or other non-testimonial evidence by oral testimony, deposition, or written admissions. If the proponent is able to establish the contents of the writing in that manner it is not required that the proponent justify the non-production of the original document.

Witness Testimony as to the Existence of the Document

If the proponent has a witness testify as to the contents of a document that the proponent is unable to produce at trial, the proponent may ask the witness numerous questions in order to lay a foundation to support admission of the document. The proponent may ask the witness if she recognizes the document, how they recognize the document, and if the document is an original.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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