The Best Evidence Rule: What are its exceptions?

For a judge or jury to accept a case, written, recorded, or photographic evidence is typically necessary. Photos of property damage, voicemail recordings, and contracts are examples of proof. When recorded, written, or photographic evidence is required for a trial or hearing, the Federal Rules of Evidence state that the “original writing, recording, or photograph must be provided to prove its content unless the original is lost, destroyed, or otherwise unobtainable.”

This principle of evidentiary law is known as The Best Evidence Rule, often known as the original writing rule. Using the original writing, audio, or image is the best approach to establish the substance of the evidence, according to the Best Evidence Rule. Requiring best evidence helps courts resolve factual disputes more quickly and correctly because it forces litigants to present evidence that does just that. It is only if the original document is unavailable that other evidence of writing, recording, or image is accepted.

As long as there is no evidence that the photocopy is not authentic, it’s commonly accepted as the original. Using the original documents criteria, documents that re-state or paraphrase the original are not included.

The Best Evidence Rule and how the party complies with it will be discussed in this article. In addition, we will talk about the rule’s exclusions and the rule’s non-applicability in particular evidential instances. Finally, we’ll look at a real-world example of how the Best Evidence Rule applies to electronically stored data.

Best Evidence Rule: When Does it Apply?

Evidence Rule
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Writing, recording, and photographic proof are only admissible if they are used to support a claim about their content. An event or fact that has been documented in writing, audio, or photographic evidence is not subject to the Best Evidence Rule.

A witness may, for example, testify that she paid a party without submitting a payment receipt into evidence. In this case, the witness isn’t testifying to the contents of the receipt, but rather to the fact that he or she paid. In addition to her evidence that she made the money, the witness provides another independent foundation for proving payment. That the receipt may be put into evidence does not imply that the Best Evidence Rule necessitates that the receipt be entered into evidence.

However, the Best Evidence Rule will apply since the content of the receipt is being supplied when a party seeking to establish payment does not recollect the experience of paying the amount but has a receipt and wishes to testify what the document reveals. Original or photocopy of the receipt should be brought into evidence as the “best proof” of what the receipt reveals.

In these situations, it’s hard to tell the difference. People’s birth, a person’s marital status, a person’s age, and a person’s death are only a few instances of things that may be confirmed by evidence other than the original document. Testimony may be used to prove each of these facts even if they can be documented in a written form such as a birth certificate or a marriage license.

Since its inception, the rule has developed to reflect the actual difficulties of collecting and presenting an original piece of evidence in court. Because so much information is now held digitally, the original of an electronic piece of evidence includes any printouts of that data as well as the electronic data itself. In order to fulfill the requirement, a litigant might print off an email chain and also use the printout as an original copy of the email chain for the purpose of submitting it to the court.

Written, audio and photographic evidence may be reproduced in court in addition to the originals and printouts saved electronically. During litigation, parties commonly provide photocopies or scanned versions of documents without a problem. Duplication is permitted UNLESS the original’s authenticity is called into doubt or the circumstances make it unreasonable to allow it and a counter-party challenges its validity.

In a landlord-tenant dispute, for example, a plaintiff might provide a copy of the lease agreement. Nevertheless, if the opposing party asserts that the plaintiff’s copy of the agreement is false, the Best Evidence Rule demands that the plaintiff provide the original agreement.

Best Evidence Rule: What Are the Exceptions?

There are exceptions in relation to the Best Evidence Rule. It is not necessary to have the original text, recording, or image when:

  • It isn’t the person providing the evidence acting in bad faith who has destroyed or lost all originals;
  • It’s impossible to retrieve the original via any court method;
  • For example, a party who had ownership of the original document was made aware that the original would be used as evidence at the trial or hearing, yet failed to deliver it;
  • Neither the writings, recordings, nor the photographs are directly connected to the case’s determining factor.

Using secondary evidence, a party may prove the substance of the writing, audio, or image that falls under one of these four exceptions.

The first exception will be used in the following example. A divorcing spouse is trying to establish the contents of a prepared letter she viewed on a laptop that was authored by the other party. When the home was damaged in a flood, the laptop she was using to prove these contents were destroyed. The Best Evidence Rule doesn’t bar the spouse from using other evidence, such as the testimony, to support what the letter said, as she was not at fault for destroying the laptop and the original letter was solely on the laptop.

When “no meaningful purpose to producing the original” exists, the court might decline to apply the rule and refuse to produce the original.

Although they are no exceptions to the rule, three additional rules in the Federal Rules of Evidence clarify when the rule does not apply to certain types of evidence.

Public Records

To remove a public record from evidence is impractical and might create an inconvenience, hence it is not necessary to provide an original public document as evidence. A copy of an official public record or a document that was filed or recorded in a public office may be used to support a claim of public records if:

  • The document or record will be acceptable.
  • The copy has been certified as accurate, or a third party has attested to the accuracy of the copy by comparing it to the original.

Large or Voluminous Writings

Due to the difficulty of examining the originals of large or voluminous documents, recordings, or photographs, they are also handled differently than smaller or more manageable ones. A summary, graphic, or calculation may be used to demonstrate the substance of this form of evidence. The original or a copy of the summary, graphic, or calculation must be made accessible for inspection by the person supplying it. It is therefore possible to summarize a huge book and offer notice to the court that the original is accessible and may be seen by any party.

Testimony of Another Party

A party may also utilize the deposition, testimony or written statement of the opposing party to show the substance of a separate recording, writing or photographic evidence when such evidence is provided against the other party. Lastly, A defendant may use a plaintiff’s deposition to argue that the image revealed pre-existing damage if the plaintiff says in his deposition that he took the photograph showing damage to his car previous to the collision.

Electronically Stored Information

The use of electronic data as an example of this rule is intriguing. The admissibility of text messages between the plaintiff and defendant was up for debate in one court. Forwarded texts from a mobile phone straight to the defendant’s counsel were sent in separate emails containing one text message. As far as we know, there was no way to take a screenshot of a message on the phone. An affidavit declaring that the emails were accurate representations of text messages from the defendant’s phone was attached to each email that was submitted for evidence. Text message information, including the sender’s name, was also provided by the defendant. The phone had been replaced and wasn’t available any longer.

Using the Best Evidence Rule, the court ruled that the printed emails of text messages were admissible. Emails were the only way to access the original text messages, which had been forwarded straight from the phone. The defendant also affirmed the texts’ validity. The emails were the greatest proof of the text exchanges because of all of these aspects.

A party that seeks to present an inaccurate copy of electronic data under the Best Evidence Rule is likely to have the evidence thrown out of court. Cut-and-paste conversations of chat rooms obtained from an instant message box and put into a Microsoft Word document were offered to the court as an example. The party testified that post each instant messaging exchange on a personal computer, he highlighted the whole conversation and copied it into the Word document thereafter. There was no record of the chat room chats in any form.

Because of the unreliability of the procedure of cutting and pasting, the court ruled that the cut-and-paste discussions could not be allowed. The court concluded this because the parties agreed that mistakes may arise if letters or words were not highlighted appropriately and the document itself had these sorts of problems. As a result, it wasn’t a true representation of the conversation. The Best Evidence Rule emphasizes the importance of providing reliable evidence in court. A court will disregard evidence that cannot even be shown to be accurate by the party giving it.

Parties may feel burdened if they must comply with the Best Evidence Rule. Although this rule is broad, it may be applied to a wide variety of scenarios in which acquiring original evidence is impossible. It is also possible to use alternative forms of evidence, such as writings, recordings, or photographs as proof if the original is unavailable or impracticable.


State and federal standards of evidence mandate the Best Evidence Rule, which is reflected in this article. It is important to bear in mind that every state has its own set of evidence laws in addition to federal regulations.

Please feel free to contact us if you have any questions about this subject.

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