Evidence in Civil and Criminal Cases: The Best Evidence (Original Documents) Rule (2022)

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Video-Course: Other Issues Concerning Evidence - Module 4 of 6

The Best Evidence Rule

Proving a case to acourt or jury often requires using written, recorded or photographic evidence. Thesetypes of evidence include pictures of property damage, voice message recordingsand contracts. When written, recorded or photographic evidence is needed for ahearing or trial, the Federal Rules of Evidence provide that the “originalwriting, recording, or photograph must be provided to prove its content unlessthe original is lost, destroyed, or otherwise unobtainable.”[1]

This undergirdingprinciple of evidentiary law is called the BestEvidence Rule, also referred to as the originalwriting rule. The foundation of the Best Evidence Rule is that the originalwriting, recording or photograph is the ‘best’ way to prove the actual contentof the evidence. This is because requiring best evidence ensures that litigantsprovide evidence that will best facilitate a court’s task of accuratelyresolving disputed issues of fact.[2] Other evidence of thewriting, recording, or photograph will be admissible ONLY if the originaldocument is not available.

A photocopy isgenerally considered the same as the original unless there is a genuine concernthat the photocopy is not genuine. The original documents rule serves toexclude documents that paraphrase or re-state the original.[3]

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

Whendoes the Best Evidence Rule apply?

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

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

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

The distinction shownin these examples is tricky to identify. Other common examples of matters oftenproven through evidence other than the original writing, recording orphotograph include a person’s birth, a person’s age, a marital status or aperson’s death. Even though each of these facts can be shown through writtenevidence, 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 evolvedto reflect the practical limitations placed on obtaining and producing anoriginal piece of evidence for a hearing to trial. Today, most information isstored electronically so the original of an electronically stored piece ofevidence includes any printout of that information.[4] If a litigant wishes tosubmit a series of emails in court, he could print out the email chain and usethe printout as an original for purposes of satisfying the rule.

In addition tooriginals and printouts of electronically stored information, duplicates ofwritten, recorded or photographic evidence are admissible in court. Partiesfrequently submit photocopies or scanned copies of documents during litigationwithout running into issues with the rule. This is allowed UNLESS a genuinequestion is raised about the authenticity of the original, or the circumstancesmake it unfair to admit the duplicates and the duplicate is challenged by anopposing party.[5]

For example, aplaintiff 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 agreementthat the plaintiff has provided is fraudulent (and this claim is judged to havesome basis or merit), the Best Evidence Rule requires that the plaintiff producethe original lease agreement.

Exceptionsto the Best Evidence Rule

Exceptions to the BestEvidence Rule exist. The original writing, recording or photographic evidenceis not required when:

1)All the originals arelost or destroyed and not by the party offering the evidence acting in badfaith;

2)The original cannot beobtained by any available judicial process;

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

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

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

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

Another exception isthat the court can, at its discretion, refuse to apply the rule when therewould be “no meaningful purpose to producing the original.”

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


A party does not needto introduce an original public record into evidence because removing theoriginal of a public record is simply not practical and could be aninconvenience. 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 documentis otherwise admissible; and

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

Large orVoluminous Writings

Large or voluminouswritings, recordings or photographic evidence are also treated differentlybecause reviewing the originals would be inconvenient to the court. For thistype of evidence, the party offering it may provide a summary, chart orcalculation to prove its content. The party offering the summary, chart or calculationmust make the original or a duplicate available for examination. [8] Thus, a party may providea summary of a large book to the court, while providing notice that theoriginal book is available and any party can examine it.

Testimonyof Another Party

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

ElectronicallyStored Information

Electronically storedinformation is an interesting case study in this rule. One court was faced withthe question of whether to admit text messages exchanged between the plaintiffand defendant.[10]The text messages had been forwarded in separate emails directly from a cellphoneto the defendant’s attorney and each email contained one text message. Thephone did not have screen shot capabilities or any other method of capturing animage of the messages. Accompanying each email seeking to be introduced intoevidence was a declaration from the defendant stating, under penalty ofperjury, that the emails accurately reflected the text messages from thecellphone. The defendant also offered details about the text messages,including who sent them. The cellphone had since been replaced and was nolonger available.

The court determinedthat the printed-out emails of the text messages were acceptable for purposesof satisfying the Best Evidence Rule. The text messages were forwarded directlyfrom the cellphone and the emails were the only available record of themessages. Also, the defendant vouched for the authenticity of the messages.[11] Each of these factorsindicated that the emails were the best possible evidence of the text messages.

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

When presented withthis evidence, the court decided that the cut-and-paste conversations could notbe admitted because the method of cutting and pasting were unreliable. Thecourt reached this conclusion because the party admitted that errors couldoccur if words or letters were not highlighted correctly and the documentitself contained these types of errors. The document had also been edited anddid not accurately represent the conversations.[13] An important lesson hereis that the Best Evidence Rule is focused on ensuring that evidence provided incourt is accurate. When the party offering the evidence cannot even establishits accuracy, a court will exclude it.

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


[1]Fed. R. of Evid. 1002.

[2] Dale Nance, The Best EvidencePrinciple, 73 Iowa L. Rev. 227, (1988).

[3] Fed. R. of Evid. 1003.

[4] Fed. R. of Evid. 1001.

[6] Fed. R. of Evid. 1004.

[7] Fed. R. of Evid. 1005.

[8] Fed. R. of Evid. 1006.

[9] Fed. R. of Evid. 1007.

[10] Grecov. Velvet Cactus, Civil Action No.: 13-3514, 6-8 (E.D. La. June 27, 2014).

[11] Greco at 6-8.

[12] U.S.v. Jackson, 488 F. Supp. 2d 866 (D. Nebraska 2007).

[13] Jacksonat 871-72.

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