The Best Evidence Rule: Requirement of the Original

The so-called “Best Evidence Rule” is an old rule which provides that if a party is trying to prove the contents of a document, the document should be introduced into evidence unless there is a good reason to not enter the document into evidence.

The term “Best Evidence Rule” is actually misleading and Federal Rule of Evidence 1002 now calls it “Requirement of the Original” which is much more helpful.

Let’s say a party is testifying about the contents of a contract to try and prove that the opposing party breached the contract.  The party might want to testify that, “Article 2 of the Contract says ‘David promises to sell his red car.’   But David never sold the car.  So I’m suing him.”

The Requirement of the Original rule or Original Document rule tells us that instead of just testifying about what Article 2 of the contract said, we should enter the contract into evidence.  Unless there is proof of fabrication, a photocopy of the contract should be fine, too.

The idea is that Article 2 of the contract is the “best evidence” of what Article 2 of the contract actually says.

Don’t Get Tricked

The rule only applies if someone is trying to prove the contents of a  document.  For example, let’s say you wanted to testify that you bought milk yesterday.  That’s fine.  You don’t have to enter into evidence a receipt for the milk.

On the other hand, if you testify that the milk receipt stated that  “If you buy one quart of milk you get a second quart of milk free” that will probably trigger the rule.  In that case you should enter the receipt into evidence.  The receipt itself is the best evidence of what was actually written on the receipt.

Let’s say Patty wants to testify that Fred sent her a photograph of Fred breaking  a car window.  If a lawyer asks Patty to testify about what was in the photograph, the Requirement of the Original rule should apply. We should enter the photograph into evidence.

What if there is no Original Document?

In some cases it’s just impossible to enter the original document.  Let’s say a party lost his receipt or  the photograph is gone.  Now the rule will require the party to explain why he can’t enter the original into evidence and the court might choose to accept secondary evidence instead.

Please look at Federal Rule of Evidence 1004 for circumstances where a court will likely admit secondary evidence.  Among other things, Rule 1004 provides that secondary evidence will be accepted if the original was lost or destroyed but not as a result of bad faith action by the party that seeks to testify about its contents.  Also, if the party that is in control of the document refuses to disclose it or if there is no way to obtain the document through judicial process a court is likely to admit the secondary evidence.

Exam Tip

On an exam, watch out for a scenario where an attorney asks a witness, “What was in the document?”  This likely indicates that the Requirement of the Original rule will apply.

On the other hand, if a witness is not being asked about a particular document, then the rule should not apply.  Sure, a document might help to corroborate or disprove a witness’s testimony, but the rule does not require the party to offer a document into evidence.  For example, if a witness testifies that he bought milk, it would be helpful to see a receipt, but the rule does not require the receipt.  The rule only requires the receipt if the witness wants to testify about the contents of the receipt.

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