Best Evidence Rule

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

  • If you are not trying to prove the content of the writing (if the writing is the source of the information), you (such as with eyewitness testimony), you are not required to produce the original.

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 it unfair to admit the duplicate.

  • Duplicates are admissible only if it is a mechanical process that produced the duplicate. If a human produced it, human error raises a question about its authenticity.

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 in 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 that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the 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.
  • A court may find bad faith where it does not exist if it thinks the evidence should not be admitted for the purpose of the rule. (Maybe if gross negligence)
Inscribed Chattel

Inscribed chattels are short, easy-to-remember writings.

The best evidence rule is not applied to writings that are inscribed chattels, allowing it to show that the writing was there.

Inscribed chattels are really similar to verbal objects.

Some factors that courts might use in finding something an inscribed chattel are:

  1. Need of precise information
  2. Central to issue
  3. Civil or criminal
  4. Case of prod.
  5. Simplicity or complexity