When it comes to admitting writings, recording, or photographs the original is preferable. An exact copy of the original is also acceptable as long as its authenticity is not in question.
When Does the Best Evidence Rule Apply?
Is is very important to understand that the best evidence rule only applies when a witness is relying on a piece of evidence to provide his testimony. If the witness perceived the events himself the best evidence rule will not apply, even if additional evidence in the form of a writing, recording, or photograph also happens to exist.
Example 1: A witness testifies that while dining at a local McDonald’s restaurant he saw me jump over the counter, grab several Big Macs, and run out the front door. The store’s surveillance video also captured the incident, and this video itself is available. Does the best evidence rule apply here? NO. The witness is testifying on the basis of what he personally saw. He is not relying on the surveillance video footage, but rather what he personally observed that day. Is the surveillance video a better piece of evidence than the witness’s memory of what he saw? Probably, but that’s not actually relevant here.
Example 2: The store manager, who did not witness the actual incident, testifies that he viewed the surveillance footage of me jumping over the counter and grabbing several Big Macs. He wants to describe what the surveillance video showed in court. The original recording of the surveillance video is available. Does the best evidence rule apply here? YES. The store manager did not personally perceive this event and he is relying on the surveillance footage video to deliver his testimony. Therefore the “best evidence,” in the form of the original surveillance video, must be produced.
Understand
- A witness can testify about about what he personally perceived, even if there is an arguably better piece of evidence out there in the form of a writing, recording, or photograph.
- However, if a witness is describing the contents of a writing, recording, or photograph that he saw or heard, the original must be produced if it is available.
- Simply ask yourself what the witness is actually describing. If the witness is describing what he personally perceived, the best evidence rule does not apply (regardless of whatever additional evidence is available). If the witness is describing what is on a writing, recording, or photograph, the best evidence rule does apply.