Evidence in Civil and Criminal Cases: The Best Evidence (Original Documents) Rule

The Best Evidence Rule

Proving a case to a court or jury often requires using written, recorded or photographic evidence. These types of evidence include pictures of property damage, voice message recordings and contracts. When written, recorded or photographic evidence is needed for a hearing or trial, the Federal Rules of Evidence provide that the “original writing, recording, or photograph must be provided to prove its content unless the original is lost, destroyed, or otherwise unobtainable.”[1]

This undergirding principle of evidentiary law is called the Best Evidence Rule, also referred to as the original writing rule. The foundation of the Best Evidence Rule is that the original writing, recording or photograph is the ‘best’ way to prove the actual content of the evidence. This is because requiring best evidence ensures that litigants provide evidence that will best facilitate a court’s task of accurately resolving disputed issues of fact.[2] Other evidence of the writing, recording, or photograph will be admissible ONLY if the original document is not available.

A photocopy is generally considered the same as the original unless there is a genuine concern that the photocopy is not genuine. The original documents rule serves to exclude documents that paraphrase or re-state the original.[3]

This presentation will address what the Best Evidence Rule applies to and how a party complies with it. Additionally, we will discuss exceptions to the rule, as well as certain non-applicability of the rule to specific evidentiary situations. Finally, we will look at a case study of electronically stored information and its interconnection with the Best Evidence Rule.

When does the Best Evidence Rule apply?

The Best Evidence Rule only applies when the party offering evidence seeks to prove the content of the writing, recording or photographic evidence. The Best Evidence Rule does NOT apply when a party is simply trying to prove an event or fact that is memorialized in a writing, recording or piece of photographic evidence.

For example, a witness may testify that she provided payment to a party without entering a receipt for the payment into evidence. In this scenario, the witness is not testifying to what the receipt says, but is testifying to making payment. The witness has an alternate, independent basis to prove payment which is through testimony that she made the payment. The fact that the payment can also be proven by entering the receipt into evidence does not mean that the Best Evidence Rule requires that the receipt be entered.

However, when a party is attempting to prove payment does not recall the experience of making the payment, but has a receipt and wants to testify as to what the receipt shows, the Best Evidence Rule will apply since it’s the content of the receipt that is being offered. The “best evidence” of what the receipt shows is the receipt itself and the original receipt (or a photocopy) should be entered into evidence.

The distinction shown in these examples is tricky to identify. Other common examples of matters often proven through evidence other than the original writing, recording or photograph include a person’s birth, a person’s age, a marital status or a person’s death. Even though each of these facts can be shown through written evidence, such as a birth certificate, marriage license or death certificate, they are also events or facts that can easily be established by testimony.

Over time, the rule evolved to reflect the practical limitations placed on obtaining and producing an original piece of evidence for a hearing to trial. Today, most information is stored electronically so the original of an electronically stored piece of evidence includes any printout of that information.[4] If a litigant wishes to submit a series of emails in court, he could print out the email chain and use the printout as an original for purposes of satisfying the rule.

In addition to originals and printouts of electronically stored information, duplicates of written, recorded or photographic evidence are admissible in court. Parties frequently submit photocopies or scanned copies of documents during litigation without running into issues with the rule. This is allowed UNLESS a genuine question is raised about the authenticity of the original, or the circumstances make it unfair to admit the duplicates and the duplicate is challenged by an opposing party.[5]

For example, a plaintiff may submit a copy of a lease agreement in a landlord-tenant dispute. But if the opposing party claims that the duplicate version of the agreement that the plaintiff has provided is fraudulent (and this claim is judged to have some basis or merit), the Best Evidence Rule requires that the plaintiff produce the original lease agreement.

Exceptions to the Best Evidence Rule

Exceptions to the Best Evidence Rule exist. The original writing, recording or photographic evidence is not required when:

1)      All the originals are lost or destroyed and not by the party offering the evidence acting in bad faith;

2)     The original cannot be obtained by any available judicial process;

3)    The party who the original document would be offered against had control of the original, was put on notice that the original would be a subject of proof at the trial or hearing, and fails to produce it; or

4)     The writing, recording or photograph is not closely related to a controlling issue in the case.[6]

Once a party shows that one of these four exceptions is applicable, the content of the writing, recording or photographic evidence can be shown through secondary evidence.

The following example will apply the first exception. A spouse in a divorce proceeding wants to prove the contents of a drafted letter that she read on a laptop that was written by the other spouse. Even though she wants to prove these contents, the laptop was destroyed when the house was damaged in a flood. Since the spouse offering the letter was not at fault in destroying the laptop, and the original letter could not be obtained because it only existed on the laptop, the Best Evidence Rule DOES NOT prevent the spouse from offering other evidence, such as her testimony, to prove what the letter said.  

Another exception is that the court can, at its discretion, refuse to apply the rule when there would be “no meaningful purpose to producing the original.”

The Federal Rules of Evidence contain three further rules that are not necessarily exceptions to the rule, but provide clarification on non-applicability of the rule to some categories of evidence.

Public Records

A party does not need to introduce an original public record into evidence because removing the original of a public record is simply not practical and could be an inconvenience. Public records can be proven with a copy of an official record, or of a document that was recorded or filed in a public office, when:

1)    The record or document is otherwise admissible; and

2)   The copy is certified as correct; or a party who has compared the copy to the original testifies that the copy is correct.[7]

Large or Voluminous Writings

Large or voluminous writings, recordings or photographic evidence are also treated differently because reviewing the originals would be inconvenient to the court. For this type of evidence, the party offering it may provide a summary, chart or calculation to prove its content. The party offering the summary, chart or calculation must make the original or a duplicate available for examination. [8] Thus, a party may provide a summary of a large book to the court, while providing notice that the original book is available and any party can examine it.  

Testimony of Another Party

Finally, a party may use the testimony, deposition or written statement of an opposing party to prove the content of a separate writing, recording or piece of photograph evidence when that evidence is being offered against that party.[9] For example, if a plaintiff states in a deposition that he took a photograph prior to an accident showing damage to his vehicle, the opposing party can use the contents from that deposition against the plaintiff to prove that the photograph showed pre-existing damage.

Electronically Stored Information

Electronically stored information is an interesting case study in this rule. One court was faced with the question of whether to admit text messages exchanged between the plaintiff and defendant.[10] The text messages had been forwarded in separate emails directly from a cellphone to the defendant’s attorney and each email contained one text message. The phone did not have screen shot capabilities or any other method of capturing an image of the messages. Accompanying each email seeking to be introduced into evidence was a declaration from the defendant stating, under penalty of perjury, that the emails accurately reflected the text messages from the cellphone. The defendant also offered details about the text messages, including who sent them. The cellphone had since been replaced and was no longer available.

The court determined that the printed-out emails of the text messages were acceptable for purposes of satisfying the Best Evidence Rule. The text messages were forwarded directly from the cellphone and the emails were the only available record of the messages. Also, the defendant vouched for the authenticity of the messages.[11] Each of these factors indicated that the emails were the best possible evidence of the text messages.

On the other hand, when a party attempts to submit a reproduction of electronically stored information using unreliable methods, courts will likely exclude the evidence under the Best Evidence Rule. For example, a court was presented with a cut-and-paste of chat room conversations that were taken from an instant messaging box and pasted onto a Microsoft Word document.[12] The party testified that after each instant message conversation on a computer, he highlighted the entire conversation and copied in onto the Word document. There was no original, printout or other record of the chat room conversations.

When presented with this evidence, the court decided that the cut-and-paste conversations could not be admitted because the method of cutting and pasting were unreliable. The court reached this conclusion because the party admitted that errors could occur if words or letters were not highlighted correctly and the document itself contained these types of errors. The document had also been edited and did not accurately represent the conversations.[13] An important lesson here is that the Best Evidence Rule is focused on ensuring that evidence provided in court is accurate. When the party offering the evidence cannot even establish its accuracy, a court will exclude it.

Compliance with the Best Evidence Rule may appear to burden parties. However, the rule is flexible enough to accommodate the many situations that make obtaining original evidence impractical. Thus, when a party can show that the original is not available or impractical to procure, the Rule is flexible enough to allow other types of evidence as proof of what the writing, recording or photographic evidence shows.