Duhaime's Law Dictionary

Best Evidence Rule Definition:

When a document is proposed as evidence, the original must be produced.

Related Terms: Exhibit, Evidence

Sometimes also known as the original document rule but the scope of the rule is not limited to documents.

The rule is said to have originated with these words of Justice Holt in the 1701 case of Ford v Hopkins:

"... the best proof that the nature of the thing will afford is only required."

Forty-three years later, further support was laid down for this proposed rule of evidence by the words of the English Court in Omychund v Barker:

"The judges and the sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit."

In 1969, Lord Denning offered this statement on the status of the best evidence rule, in Garton v Hunter:

"That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in one's hands, one must produce it. One cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness and badness of it goes only to weight, and not to admissibility."

In the United States of America, as with other common law jurisdictions, the best evidence rule has had an up and down history, especially with the advent of new forms of communications which, in the era of Justice Holt, meant only paper documents. The Internet has re-opened debate about this rule which, fortunately, Lord Denning's flexible and adaptive approach accommodates.

Justice Titone of the Court of Appeals of the State of New York referred to the best evidence rule in his opinion in Schozer v William Penn Life Insurance, as well as describing the evolution of the rule in the modern law of evidence:

"The ... best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven. At its genesis, the rule was primarily designed to guard against mistakes in copying or transcribing the original writing. Given the technological advancements in copying, in modern day practice the rule serves mainly to protect against fraud, perjury and inaccuracies which derive from faulty memory.

"Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence."

In Clement v Nacol, Justice Brewster of the Court of Civil Appeals of Texas articulated the best evidence rule as follows including a further statement of applicable exceptions:

"A written instrument is itself the best evidence of its contents. The general rule is that if the original writing is not produced or its non-production accounted for, secondary evidence of its contents is not admissible....

"Where inquiry is being made as to the contents of a material document, the only competent evidence of such contents is the document itself, unless the document be first shown to be unavailable as being lost or destroyed or absent from the jurisdiction without fault on the part of the person offering the evidence, or as being in the adversary's possession where he has been notified to produce it, or as being a part of the public records, in all which cases other evidence may be resorted to.

"The rule is dispensed with in cases where the exact terms of a document are only collaterally involved in the litigation, and also where the admission of the adversary himself or his privies in interest, as to the terms of the document, are offered."

In Gray v United States, Justice Major acknowledged and applied the best evidence rule in holding:

"Complaint is also made of the admission of the testimony of Doctor Lyons' interpretation of an X-ray of plaintiff's chest, without producing the X-ray plate. This testimony was not the best evidence and was erroneously admitted."

Some jurisdictions have set the best evidence rule to writing, codified, such as this from the 2010 version of the Georgia Code, at §25-5-4:

"The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.

"Written evidence of a writing is considered of higher proof than oral evidence. In all cases where the parties have reduced their contract, agreement, or stipulation to writing and have assented thereto, such writing is the best evidence of the same."


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