The best evidence rule is a rule of evidence which excludes what is otherwise logically relevant evidence based on considerations of reliability. This is analogous to the inadmissibility of hearsay testimony. We exclude hearsay testimony because we believe testimony should be subject to cross examination so as to provide greater reliability. The best evidence rule analogously directs that original writings be presented as evidence as opposed to secondary evidence of those writings. We want the real thing. Per the Federal Rules of Evidence the Best Evidence Rule applies when a writings terms are directly at issue in the case. When the contents of a writing are in issue then an original or duplicate will be required unless there is a good excuse for not being able to produce the original or duplicate at which time there must be a demonstration that an admissible type of secondary evidence suffices.

     The Best Evidence Rule objection is not so difficult to overcome given the various methods of overcoming the objection. That being said, this is not the simplest rule to grasp and thus it is a good idea to have a general idea of how the rule works if you want to overcome a best evidence rule objection. First and foremost, we need to remember that the rule applies to “writings”. Often enough attorneys object on Best Evidence grounds without understanding that the rule applies only to writings. That being said, the Federal Rules of Evidence has a broad definition which includes writings, recordings, and photographs. The interpretation of what falls under this definition will vary between jurisdictions. The point is that you may be able to overcome a Best Evidence Rule objection easily just by showing that what you intend to produce is not in fact a writing.

     Beyond the rule’s application to writings keep in mind that it only applies to these writings when the terms of that writing are an issue in the case. Thus, if you are dealing with a contract dispute, for instance, then the terms of the contract itself are likely a pivotal issue in the case. As a result, the Best Evidence Rule would apply if a proponent tried to submit a substitute for the contract itself in. This can be differentiated from the many other circumstances where a writing is only evidence of a particular independent act. In that case, the writing itself is not in issue, but rather is just one form of evidence which can support the existence of an independent act. If the writing’s terms are not “in issue” then the Best Evidence Rule will not apply.

     Even if the terms of a writing are in issue the judge may likely dispense with a best evidence rule objection if the terms relate to minor issues. The common circumstance where this will occur is when a copy of a prior written statement is used to impeach a witness. Since the copy is being used to impeach it is only collaterally relevant and thus the judges can dispose with the requirement in this context. Another example where this could occur would be the situation in which you wish to use a copy, not the original, of a document for the purpose of refreshing a witness’s recollection. Since the evidence is only being used collaterally and not being submitted into evidence, the court will likely allow this use despite a best evidence objection. Thus the trial judge seems to have wide discretion as to when he or she would like to apply the rule.

     Beyond these considerations, keep in mind that there is some flexibility in the word “original” as in “original writing” which is what the best evidence rule applies to. The original is not always the first writing prepared. It could be the case that the writing was first prepared and then copied and then the copy was the document used between the parties wherein the dispute arose. In this context the copy, which would be the second document prepared, would be considered the original for purposes of the rule. Thus it is the “original” in a legal sense not a chronological sense as you might assume. Beyond this, the federal rules interpret an original to be not only the original writing or record but also any counterpart which was created for the same effect as the original. The copy must be reliable, made by mechanical means and intended to have essentially the same effect as the first document prepared.

     Beyond defining what is an original we can also look to see what constitutes a duplicate. Remember that a duplicate suffices just as an original document does. You don’t even need to give reason for not providing the original if you have a duplicate. To qualify as a duplicate the document must generally be prepared for the same purpose and prepared with the same formalities and at the same time as the original. That being said, the Federal Rules have expanded this definition of duplicate to include documents which were not prepared contemporaneously with the original. The Federal Rules only require that the duplicate be prepared by mechanical means or processes which accurately reproduced the original.

     If you are the proponent of a duplicate, for example, you will need to know how to lay a foundation or the same. You will first voir dire your witness on his recognizing the document and the basis upon which he recognizes the document. Then your witness can testify that the writing is a copy and that it was made contemporaneously with the original and was prepared with the intention of having the same legal effect as the original. Finally, have your witness testify that the duplicate was prepared with essentially the same formalities as the original. Remember, that if you are in federal court you do not need to necessarily demonstrate that the duplicate was made contemporaneously as long as the witness can show that the copy was made by reliable, mechanical means.

     Although the federal rules has a more lax interpretation of duplicate than the common law, given the disregard for the contemporaneous element, it is more restrictive in another sense. If there is a question as to the authenticity of the original then the court may be reluctant to allow a copy whether it was made contemporaneously or not. In this instance the proponent would need to supply the court with a good excuse for not producing the original before the court would allow the duplicate.

     In the event the proponent lacks the original or a duplicate he or she may not need fret. The rule also allows for secondary evidence to be introduced in lieu of the original or duplicate if the proponent can provide an adequate excuse for not producing the original. There are two different types of admissible secondary evidence. The first is the copy which is authenticated by the witness as being an accurate copy of the original. The other is just oral testimony as to the witness’s recollection of the document.

     If you put a witness on the stand to authenticate a copy as being an accurate copy of the original you need first voir dire the witness as to when he or she first read the original. It is critical that you have a witness who has read the original and remembers the original. That witness need testify that he clearly remembers the contents of the original and the basis for his reading and remembering the contents of the original. After your witness has established this then he can go on to testify that the copy is a true and accurate copy of the original. This is a sufficient showing to lay a foundation for this authenticated copy. Remember, that even if you don’t have a copy you may still be able to have your witness testify to the contents of the original. First and foremost, you will have to establish a good reason for not producing the original. After you accomplish this have your witness testify as to when and why he read the original and why he or she still accurately remembers the contents of the original. Your witness then will be able to testify to the contents of the original.

     This blog/article reflects the Best Evidence Rule which is promulgated by both state evidentiary rules as well as the Federal Rules of Evidence. Keep in mind that each state has its own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations. This book is a must read in my opinion for any trial lawyer. This book was my primary source of information for this particular blog. I am by no means an expert in this area. I write these blogs/articles for my own personal learning benefit.