BEST EVIDENCE RULE (B)

FRE 1002

When a witness is being asked about a document that is available to be entered into evidence, that document should be entered into evidence as proof of its contents. When the contents of a writing, recording, photograph, or other document are directly at issue, the original document must be produced. This is a good objection to raise when the evidence being solicited is not the best source of the information.

Examples

• “Is this tunnel located on the blueprints for the theater?” (and the blueprints are available to be entered into evidence)
• “Can you please describe what you saw in the photograph?” (and the photograph is available to be entered into evidence)
• “How much did you pay for the house?” (and the closing statement for the house is available to be entered into evidence)
• “What were the terms of the contract?” (and the contract is available to be entered into evidence)

FRE 1002. Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Summary

When the actual contents of a writing, recording, or photograph are considered indispensable to prove a case or establish a defense, Rule 1002 applies. Original documents occupy a central position in the law. When the contents of a document are at issue in a case, oral testimony as to the terms of the document is subject to a greater risk of error than if the original document was available and entered into evidence. The original document, or a true copy, provides reliable evidence.

For purposes of applying the Best Evidence Rule, courts often consider the following factors:

1. Relative importance of content in the case;
2. Simplicity or complexity of content and consequent risk of error in admitting testimonial account;
3. Strength of proffered evidence of content, taking into account corroborative witnesses or evidence and presence or absence of bias or self-interest on part of witnesses;
4. Breadth of margin for error within which mistake in testimonial account would not undermine point to be proved;
5. Presence or absence of actual dispute as to content;
6. Ease or difficulty of producing the document; and
7. Reasons why proponent of other proof of its content does not have or offer the document itself.

Railroad Management Co., L.L.C. v. CFS Louisiana Midstream Co., 428 F.3d 214, 218–219 (5th Cir. 2005).

Exceptions to Best Evidence Rule

FRE 1003 creates an exception to the best evidence rule by allowing duplicates to be admissible, as long as no genuine question as to its authenticity exists and admitting the duplicate in lieu of the original is not deemed unfair.

FRE 1004 creates an exception to the best evidence rule by excusing the production of the original document when it cannot be produced because it is lost, destroyed, or cannot be obtained through the legal process.

Case Law (Best Evidence Rule)

• Amin v. Loyola University Chicago, 423 F. Supp. 2d 914 (W.D. Wis. 2006) (witness’s testimony regarding content of retirement plan was inadmissible where no copy of plan was submitted and there was no claim the document was lost, destroyed or unobtainable)
• U.S. v. Hampton, 464 F.3d 687 (7th Cir. 2006) (photocopies of certificates of insurance admissible as duplicates)
• Boswell v. Jasperson, 266 F. Supp. 2d 1314 (D. Utah 2003) (where original deed was never produced and authenticity was in issue, altered deed did not satisfy Best Evidence Rule)
• U.S. v. Szehinskyj, 104 F. Supp. 2d 480 (E.D. Pa. 2000) (no unfairness in admitting copies of Nazi concentration camp documents; originals were old, in delicate condition and held in various nations’ archives)
• Marshak v. Treadwell, 58 F. Supp. 2d 551 (D.N.J. 1999) (written contract lost or destroyed in fire; photocopy admissible as duplicate under Rule 1003 or as “other evidence” under Rule 1004).
• Ridgway v. Ford Dealer Computer Services, Inc., 114 F.3d 94 (6th Cir. 1997)
• U.S. v. Ross, 33 F.3d 1507 (11th Cir. 1994)
• U.S. v. Stockton, 968 F.2d 715 (8th Cir. 1992) (best evidence rule applies to photographs of documents when photographs used to prove document's contents)
• U.S. v. Yamin, 868 F.2d 130 (5th Cir. 1989) (where defendants were convicted of trafficking in counterfeit watches, government not required under best evidence rule to produce original phony watches; even though writing on watches is what makes them counterfeit, trial court judge was within his discretion to consider them chattels)
• U.S. v. Ratliff, 623 F.2d 1293 (8th Cir. 1980) (defendant misrepresented value of pre-World War II German corporate bonds to get bank loans; not error to permit testimony of German examiner charged with duty of determining bonds’ value despite fact that there was a master valuation list)