The Original Writing (Best Evidence) Rule: A Primer

Abstract

Article X of the Federal Rules of Evidence codifies what has misleadingly been named the “Best Evidence Rule”, a rule of preference for the production of the original of a writing, recording or photograph when the contents of the item are sought to be proved. Secondary evidence establishing the content of the item is admissible only if the absence of all originals is adequately explained. “Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly ac-counted for. The contents of a written instrument may not, as a general rule, be proved by parole, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever.” 20 Am.Jur., Evidence § 406 at 366–67 (1939). Better described as the “Original Writing Rule”, the rule is limited to writings, recordings, and photographs, Fed.R.Evid. 1002; there is no general rule of evidence that a party must produce the best evidence which the nature of the case permits. The rule developed at common law to provide a guarantee against inaccuracy and fraud by insistence upon production at trial of original documents. The emphasis is upon assuring accuracy as to the terms of the writing, recording, or photograph by avoiding the uncertainties of recollection which are inherent in oral testimony, avoiding the chances of mistake which may be present in the handmade copy, and reducing the risk of inaccuracy associated with lack of sincerity. “The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence, § 550 at 283; McCormick on Evidence (3d ed. 1984) § 231 at 704; Cleary & Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L. Rev. 825, 828 (1966).” Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir.1986). Over time the scope of the rule was broadened to reflect modern reliance on photographic, mechanical, and electronic recording devices and sophisticated methods of data compilation, storage, and retrieval, Fed.R.Evid. 1001. While the great expansion of pretrial discovery has measurably reduced the need for the rule, it still has significant application in criminal cases where a greater limitation on discovery exists, as well as in unanticipated situations. Appellate consideration of issues concerning application of the Original Writing Rule must be made in light of the purpose of the rule to secure the most reliable information as to the contents of a writing, recording, or photograph. Thus, before any technical violation of the Original Writing Rule will be held reversible error, counsel must at least be in a position to assert that there is a good faith dispute as to the existence or content of the writing, recording or photograph. Absent such representation, any error is clearly harmless. The requirement of production of the original when the contents are in issue is contained in Fed.R.Evid. 1002; Fed.R.Evid. 1003 provides for admissibility of a duplicate under most circumstances. Definitions of both the terms original and duplicate, along with that of writings, recordings, and photographs, are provided in Fed.R.Evid. 1001. Fed.R.Evid. 1004 states the circumstances under which the original is not required. The functions of the court and jury with respect to the Original Writing Rule are addressed in Fed.R.Evid. 1008. Fed.R.Evid. 1005, 1006 and 1007 concern related issues involving public records, summaries and admissions of a party-opponent respectively.