Learning Outcomes
After reading this article, you will understand when the original writing, recording, or photograph must be produced in evidence, the scope and rationale of the best evidence rule, the main exceptions, and how courts handle duplicates and lost originals. You will be able to identify when secondary evidence is admissible and apply these principles to MBE-style questions.
MBE Syllabus
For MBE, you are required to understand the rules governing the admissibility of writings, recordings, and photographs, especially the requirement to produce the original. This article covers:
- The best evidence rule and its application to writings, recordings, and photographs.
- When the original is required and when duplicates or secondary evidence are allowed.
- Exceptions to the requirement of original.
- The definition of "original" and "duplicate" for exam purposes.
- Common pitfalls and exceptions tested on the MBE.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is most likely to trigger the best evidence rule?
- (A) A witness testifies from memory about a contract's terms.
- (B) A party seeks to prove the contents of a contract by introducing a photocopy.
- (C) A party testifies about the effect of a contract without mentioning its contents.
- (D) A party introduces a summary of a contract without explanation.
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When is a duplicate admissible in place of an original under the best evidence rule?
- (A) Only if the original is lost and the loss is explained.
- (B) Always, unless there is a genuine question about the original's authenticity or it would be unfair.
- (C) Never; only the original is admissible.
- (D) Only if both parties agree.
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Which situation is most likely to allow secondary evidence of a writing's contents?
- (A) The original was destroyed in bad faith by the proponent.
- (B) The original is lost despite diligent search.
- (C) The original is in the courthouse.
- (D) The original is in the proponent's possession.
Introduction
The best evidence rule, also known as the "requirement of original," governs when a party must produce the original writing, recording, or photograph to prove its contents. This rule is central to evidence questions involving documents, audio, video, or images. The rule aims to prevent inaccuracies and fraud by requiring the most reliable evidence of a document's contents.
When the Best Evidence Rule Applies
The best evidence rule applies only when a party seeks to prove the contents of a writing, recording, or photograph. If a witness testifies from personal knowledge about an event, the rule does not apply—even if the event was later recorded or photographed.
Key Term: Best Evidence Rule The rule requiring production of the original writing, recording, or photograph when a party seeks to prove its contents in court.
Scope: Writings, Recordings, and Photographs
The rule covers all forms of writings, recordings, and photographs, including contracts, letters, emails, audio files, videos, and digital images. It does not apply to physical objects or oral testimony about facts independent of a writing.
Key Term: Writing Any letters, words, numbers, or their equivalent set down in any form, including electronic documents.
Key Term: Recording Any form of audio or video preservation of sounds, images, or both.
Key Term: Photograph Any photographic image or its equivalent, including digital images and X-rays.
When the Original Is Required
The original is required when:
- The terms of a writing, recording, or photograph are at issue (e.g., proving the exact words of a contract).
- A witness's knowledge comes solely from the writing or recording (e.g., reading a serial number from a document).
If the fact can be proved independently of the writing (e.g., a witness saw the event and recalls it), the rule does not apply.
What Counts as an "Original" or "Duplicate"
Key Term: Original The writing, recording, or photograph itself, or any counterpart intended by the person executing it to have the same effect.
Key Term: Duplicate A counterpart produced by mechanical, photographic, chemical, electronic, or other equivalent process that accurately reproduces the original.
A duplicate (such as a photocopy or printout) is generally admissible unless:
- There is a genuine question about the original's authenticity.
- It would be unfair to admit the duplicate (e.g., the duplicate is incomplete or altered).
Exceptions: When Secondary Evidence Is Allowed
Secondary evidence (such as testimony about the contents or a handwritten copy) is admissible only if:
- The original is lost or destroyed (not in bad faith).
- The original is outside the court's jurisdiction and unobtainable.
- The original is in the possession of the opponent, who fails to produce it after notice.
- The writing is not closely related to a controlling issue (collateral matters).
Key Term: Secondary Evidence Evidence of the contents of a writing, recording, or photograph other than the original or a duplicate, admitted only when the original is unavailable for a valid reason.
When the Rule Does Not Apply
The best evidence rule does not apply when:
- A witness testifies from personal knowledge, not from the writing.
- The writing is used only for refreshing recollection.
- The writing is not closely related to a controlling issue (collateral).
- The writing is not being used to prove its contents.
Worked Example 1.1
A witness testifies that she saw a car accident and recalls the license plate number. The plaintiff's lawyer asks her to state the plate number from memory. The defense objects, arguing that the original police report is required.
Answer: The objection should be overruled. The best evidence rule does not apply because the witness is testifying from personal knowledge, not seeking to prove the contents of the police report.
Worked Example 1.2
A party seeks to prove the terms of a written contract by offering a photocopy. The opposing party claims only the original is admissible.
Answer: The photocopy is admissible as a duplicate unless there is a genuine question about the original's authenticity or it would be unfair to admit the duplicate.
Worked Example 1.3
A party wants to introduce a summary of hundreds of invoices to prove the total amount billed. The original invoices are available for inspection by the other side.
Answer: The summary is admissible if the originals are voluminous, cannot be conveniently examined in court, and are made available for inspection by the other party.
Exam Warning
The best evidence rule is frequently tested when a party tries to prove the contents of a document, recording, or photograph by testimony or summary. Watch for situations where the fact in issue depends on the exact words or images.
Revision Tip
If a writing, recording, or photograph is central to the dispute, always ask: Is the party trying to prove its contents? If yes, the best evidence rule likely applies.
Key Point Checklist
This article has covered the following key knowledge points:
- The best evidence rule requires the original writing, recording, or photograph to prove its contents.
- The rule applies only when contents are at issue, not when a witness testifies from personal knowledge.
- Duplicates are admissible unless authenticity is in question or unfairness would result.
- Secondary evidence is allowed only if the original is lost, destroyed (not in bad faith), unobtainable, or in the opponent's possession.
- The rule does not apply to collateral matters or when the writing is not being used to prove its contents.
- "Original" and "duplicate" have specific definitions for exam purposes.
Key Terms and Concepts
- Best Evidence Rule
- Writing
- Recording
- Photograph
- Original
- Duplicate
- Secondary Evidence
