The Best Evidence Rule: What Is It?

There are four traditional types of evidence. They include real, demonstrative, documentary, and testimonial. Documentary evidence is also a kind of real evidence. The laws governing evidence are rather complex, but there are three basic "prerequisites" for admissibility, they include relevance, materiality, and competence (http://library.findlaw.com). The major issue concerning documents is competency. The original of the document, recording, or photograph "is the most reliable proof of what the document really said, as opposed to a copy which can be more easily altered" (www.middlesex.mass.edu).

Best evidence means, "The best and topmost form of evidence which can be produced for verification" (www.legal-explanations.com). The Best Evidence Rule was established centuries ago as a common law. The Best Evidence Rule is also known as the Original Document Rule. The rationale behind the rule is very logical. Centuries ago, "a copy was usually made by a clerk, or worse, a party to the lawsuit" (http://library.findlaw.com). Obviously, if an original was not produced there would be a greater chance of error or maybe even fraud (www.gmu.edu).

An original document is a document that was "the first one prepared, signed, recorded or a negative of a picture" (www.southcarolinalaw.net). A duplicate is an exact copy of the original. For a duplicate document, recording or photograph to qualify as evidence, "the proponent must have the witness testify to the following...

*recognizes the writing

*Specifies the basis for their recollection

*Document is a copy of the original

*The parties made the copy at the same time the original was executed

*The parties intended the copy to have the same effect as the original

*The parties executed both the original and duplicate at the same time" (www.southcarolinalaw.net).

Federal Rule of Evidence 1004 states, "The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if... (1) Original lost or destroyed" (www.law.cornell.edu). "In Federal practice, any exact copies of originals carry the same legal weights as originals unless their authenticity is questioned" (http://library.findlaw.com). Duplicates are used as secondary evidence. "Secondary evidence is a reproduction of or a substitute for an original document or item of proof that is offered to establish a particular issue in a legal action" (www.legal-explanations.com). Reasons that secondary evidence can be used include, the original is lost, accidentally destroyed, or in official custody as well as a few others.

"For the purpose of the Best Evidence Rule, originals include copies (duplicate originals) made at the same time and with the same mechanical process as the original" (www.gmu.edu) Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679, 56 S.E. 725, 727 (1907).

Heather Zarka

Reference List:

Thomas Findlaw, 2001. Retrieved September 10, 2006 from http://library.findlaw.com/2001/Jan/1/241488.html

Paxson, P., 2005. Best Evidence Rule. Retrieved September 10, 2006, from Middlesex Community College. http://www.middlesex.mass.edu/criminal_justice/CJ1123.htm

Legal Explanations Website, 2006. Retrieved September 10, 2006 from http://www.legal-explanations.com/definitions/best-evidence-rule.htm

George Mason University, 2006. Retrieved September 10, 2006 from http://www.gmu.edu/departments/law/innofcourt/pdfs/b.pdf

Feldman, H.S., 2006. Retrieved from Lexis Nexis, September 10, 2006 from http://www.southcarolinalaw.net/article.jsp?practArea=38&articleIndex=4

Cornell Law School, 2006. Retrieved September 10, 2006 from http://www.law.cornell.edu/rules/fre/rules.htm#Rule1001