Evidence: Best Evidence Rule

• Best Evidence Rule (original documents rule) – If a party seeks to prove the contents of a writing, the party must either (i) produce the writing or (ii) provide an acceptable excuse for its absence. If the court finds such an excuse acceptable, and the document is unavailable, the party may then use secondary evidence (oral testimony) to prove the contents. [Writing = documents, recordings, films, x-rays].

• Applicability of the Rule. The Best Evidence Rule applies where
• The writing is a legally operative or dispositive instrument [i.e., the writing itself creates rights and obligations like a deed or mortgage]; or
• A witness is testifying to facts the she learned solely from reading about them in the writing. (BEWARE: Rule does NOT apply where the fact to be proved has an existence independent of any writing. Many writings record details of essentially non-written transactions. Oral testimony of these facts may be given without the original writings recording the event).

• What Qualifies as the "Original Writing"?
• Original: includes the writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative.
• Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carboncopy)
• A duplicate is admissible to the same extent as the original unless there is a genuine question about the authenticity of the duplicate; or it would be unfair to admit the duplicate.
• Handwritten copies are not considered originals.

• A party need not produce the original (or an acceptable duplicate) if the original is lost or cannot be found with due diligence, has been destroyed without bad faith, or cannot be obtained with legal process. If the court is persuaded by a preponderance of the evidence that the excuse has been established, then secondary evidence is admissible (oral testimony; handwritten copy).

• When the Best Evidence Rule does not apply – Escapes from BER requirements:

• Summaries of Voluminous Records – voluminous records can be presented through a summary or a chart, provided the original records are admissible and available for inspection.
• Certified Copies of Public Records – The rule does not apply to copies of records that are certified as correct or testified to as correct.
• Collateral Documents – The rule does not apply where the writing is of minor importance to the matter in controversy.

-- Limited Reach of Best Evidence Rule is usually a wrong answer on the bar exam --