1.  Generally

The best evidence doctrine requires a party to produce the best attainable evidence to prove a disputed fact or issue.{footnote}E.g., Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 643, 644 N.E.2d 1353, 1355, 620 N.Y.S.2d 797, 799 (1994).{/footnote}  Thus, the contents of a writing, recording or photograph must generally be proven through the original writing, unless the original is unavailable.{footnote}FRE 1002 provides:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
United States v. Winkle, 587 F.2d 705 (5th Cir. 1979).
Cal. Evid. Code § 1500; Fla. Stat. 90.952 (1991); Nev. 52.235 Off. Code Ga. Ann. § 24-5-4; Idaho Code §§ 9-411 and 9-417; Idaho R. Evid. 1001, 1002, and 1003; Kan. Stat.Ann. 60-467(a);
See generally see 4 John H. Wigmore, Evidence 1177-83 (James Chadbourne rev. 1972).{/footnote}  Another common application of this doctrine is the requirement that criminal convictions be proven by a certified copy of the judgment.{footnote}McIntyre v. State, 463 S.E.2d 476, 480 (Ga. 1995) (best evidence rule requires that prior conviction be proved by certified copy, but objection held waived); State v. Samonte, 928 P.2d 1, 33 (Hawaii 1996) (same); Commonwealth v. Willis, 719 S.W.2d 440 (1986).{/footnote}  See also CONVICTIONS—Proof of Conviction.

2.  Applicability of Rule

2(a).  Generally

The best evidence rule bars secondary evidence where the proponent is seeking to establish the content of a writing, recording or photograph.{footnote}Amoco Production Co. v. United States, 455 F. Supp 46 (D. Utah 1977) (rule excludes evidence of habit to prove the contents of writing).
Bishop v. Kenney, 466 S.E.2d 581 (Ga. 1996) (probate court did not err in excluding testimony regarding existence and contents of prior will; proponent was required to either produce the will or satisfactorily explain its absence); Booth v. Cook, 20 Ill. 130 (1858); State v. Muck, 1997 Kan. LEXIS 85 (Kan. 1997) (trial court properly barred testimony as to state agency’s certification of breath analyzer equipment and of equipment operator); Trimble v. State, 478 A.2d 1143, 1151 (Md. 1984), cert. denied, 469 U.S. 1230 (1985).{/footnote} It has been extended to magazines,{footnote}State v. Lovelace, 607 P.2d 49 (Kan. 1980).{/footnote} photographs, recordings,{footnote}Cartier v. Jackson, 59 F.3d 1046 (10th Cir. 1995).{/footnote} films,{footnote}U.S. v. Levine, 546 F.2d 658 (5th Cir. 1977) (motion picture alleged to be obscene).{/footnote} X-rays and similar media.{footnote}FRE 1002, 1004; Cal. § 250.{/footnote}  See PHOTOGRAPHS; TAPE RECORDINGS; VIDEOTAPES AND FILMS; X-RAYS.

Facts which are contained in a writing may be proven by independent evidence, and there is no necessity of producing the writing itself, even if it is arguably the "best evidence" as to that fact.{footnote}Allstate Ins. Co. v. Swann, 27 F.3d 1539 (11th Cir. 1994)(insurer’s underwriting guidelines not subject to rule).
Insurance Co. of North America v. Cooke, 624 So. 2d 252, 256 (Fla. 1993) (computer printout admissible to show mailing of notice to insured); Bishop v. Kenney, 466 S.E.2d 581 (Ga. 1996) (probate court did not err in excluding testimony regarding existence and contents of prior will; proponent was required to either produce the will or satisfactorily explain its absence); People ex rel. Person v. Miller, 371 N.E.2d 1012 (Ill. App. 1977) (proof of failure to pay child support need not be through court clerk’s records). 
CHECK Charleston Nat’l Bank v. Int’l Harvester, 22 Ill. App. 3d 999, 317 N.E.2d 585 (4th Dist. 1974); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir. 1994).
[669] {/footnote}  The rule is also inapplicable where a doument is merely used to refresh the witness’ recollection.{footnote}State v. Poirier, 1997 Me. LEXIS 84 (Me. 1997).{/footnote}  Where an original document has been altered or marked, the best evidence rule does not apply so as to exclude it from evidence on the grounds that it is not in its original form.{footnote}Davlin v. State, 899 S.W.2d 451, 453 (Ark. 1995); State v. Samonte, 928 P.2d 1, 33 (Hawaii 1996) (judgment of defendant’s felony conviction redacted to omit other felony convictions properly admitted).{/footnote}

2(b).  Proof of Oral Statements

Where a statement is heard by a witness, that witness may testify as to what he or she heard even though the statement may have been transcribed or recorded contemporansously, because the proponent is seeking to establish what was said, not the contents of a transciption or recording.{footnote}United States v. Gonzales-Benitez, 537 F.2d 1051 (9th Cir.), cert. denied, 429 U.S. 960 (1976).
People v. Sweeney, 55 Cal. 2d 27, 37-38, 357 P.2d 1049, 1054- 55, 9 Cal. Rptr. 793, 798-99 (1960); Pryor v. State, 234 S.E.2d 918, 926- 27 (Ga. 1977); Jackson v. State, 411, N.E.2d 609, 611-12 (Ind. 1980); State v. Branch, 220 S.E.2d 495, 508 (N.C. 1975); Commonwealth v. Voci, 143 A.2d 652, 653-54 (Pa.), cert. denied, 358 U.S. 885 (1958).
See also People v. Swayze, 220 Cal. App. 2d 476, 507-08, 34 Cal. Rptr. 5, 22-23 (1963) (testimony admissible even though witness used recording to refresh his memory).
CHECK United States v. Rose, 590 F.2d 232 (7th Cir. 1978).{/footnote}  Where, however, the witness only knows of the statement by virtue of a recording, the recording must be produced.{footnote}Forrester v. State, 167 A.2d 878, 884 (Md. 1961).{/footnote}  Transcripts of a recording are also not barred by the best evidence rule where the matter sought to be proven is the content of the conversation recorded.{footnote}State v. Khalsa, 542 N.W.2d 263 (Iowa App. 1995). {/footnote}  See also TAPE RECORDINGS; TRANSCRIPTS.

3.  Unavailability of an Original

3(a).  Original Lost or Destroyed

The best evidence rule does not apply where the original has been lost or destroyed through no fault of the party offering secondary evidence.{footnote}FRE 1004(1); Andrew Crispo Gallery, Inc. v. C.I.R., 16 F.3d 1336 (2d Cir. 1994)(suit challenging tax deficiency); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995); Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130 (5th Cir. 1992)(applying Texas law); Aurea Jewelry Creations, Inc. v. United States, 932 F.2d 943 (Fed. Cir. 1991).

Cal. § 1502; Young v. U.S., 1997 D.C. App. LEXIS 123 n. 1; {/footnote}  Unless there is a witness to the destruction of a document, proof of the loss or destruction of a document will normally be circumstantial.{footnote}United States v. McGaughey, 977 F.2d 1067 (7th Cir. 1992), cert. denied, 507 U.S. 1019, 113 S.Ct. 1817, 123 L.Ed.2d 447 (original tax form shown to have been destroyed through affidavit as to normal document-destruction procedure and as to unsuccessful search for form).{/footnote}  On proof of the contents of a will where the original is lost, see WILLS–Lost Wills.

3(b).  Original in Possesssion or Control of Opposing Party

The best evidence rule will not prevent secondary evidence from being introduced to prove the content of an original writing in the possession or control of an adverse party, so long as the adverse party has been requested to produce the original upon reasonable notice.{footnote}FRE 1004(3).
Cal. § 1503; Grayson v. Dungan, 628 So. 2d 445, 448 (Ala. 1993) (dicta); Electric Suuply Corp. v. Osher, 433 N.E.2d 732 (Ill. App. 1982) (party must use due diligence to obtain document from other side).
See also Commonwealth v. Koney, 657 N.E.2d 210 (Mass. 1995) (photocopy of identification card properly introduced by prosecution where original had been returned by police to defendant).{/footnote}

Some courts have held that no notice is required where the adverse party has claimed a privilege to withhold the original (such as the case of a criminal defendant asserting the privilege against self-incrimination.{footnote}People v. Lowell, 71 Cal. App. 500 (1925).  Check Cal. § 1503(a).{/footnote}  Others require that the adverse party still be given notice.{footnote}McKnight v. United States, 115 F. 972 (6th CIr. 1902).{/footnote}

3(c).  Original Not Obtainable by Judicial Process

Under the federal rules, secondary evidence is admissible where the original is in the possession of a non-party and cannot be obtained through "any available judicial process or procedure."{footnote}FRE 1004(2). 
Cal. § 1502; State v. Hagar, 691 A.2d 1191 (Me. 1996) (photocopies of credit card receipts obtained from out-of-state company in response to subpoena admissible where proponent requested originals).{/footnote}  The proponent must show that it made diligent efforts to obtain the original.{footnote}Cartier v. Jackson, 59 F.3d 1046 (10th Cir. 1995)(secondary evidence as to contents of composer’s demo tapes properly excluded where composer requested demo tapes from non-parties but took no action to compel compliance).{/footnote}

Such procedures include the issuance of a subpoena duces tecum.  Most states will deem the original unavailable where it is in the possession of an out-of-state  non-party, and thus cannot be subpoenaed.{footnote}State v. Hager, 691 A.2d 1191 (Me. 1996) (copies of credit card receipts admissible).{/footnote}  Other jurisdictions will not allow parties to offer secondary evidence under these circumstances unless they have attempted to obtain the original through letters rogatory to the other state or country.{footnote}McDonald v. Erbes, 83 N.E. 162 (Ill. 1907).{/footnote}

3(b). Official Records and Recorded Documents

Since originals of such documents are generally never available, the best evidence rule does not apply to official records or recorded documents such as deeds or mortgages, the contents of which may always be proven through certified copies.{footnote}FRE 902(4), 1005
Cal. Evid. Code § 1506.{/footnote}

4.  Exceptions to the Rule

4(a).  Duplicates

  In federal court a duplicate of a document is admissible to the same extent as an original unless (1) there is a genuine dispute as to the authenticity of the original, or (2) where it would be unfair not to allow a duplicate to be introduced.{footnote}FRE 1003; Tyson v. Jones & Laughlin Steel Corp., 958 F.2d 756 (7th Cir. 1992) (duplicates of personnel documents offered by employer to show legitimate motives for not promoting employee held properly admitted).
Buster v. Gale, 866 P.2d 837, 841 (Alaska 1994) (applying Alaska R Evid. 901).{/footnote}  The duplicate can be a photocopy,{footnote}FRE 1001(4); United States v. Rodriquez, 524 F.2d 485 (5th Cir. 1975); Dole v. Service Employees Union, AFL-CIO, Local 280, 950 F.2d 1456 (9th Cir. 1991)(copy of union meeting minutes made pursuant to court order).{/footnote} a carbon{footnote}FRE 1001(4); CTS Corp. v. Piher Int’l Corp., 527 F.2d 95 (7th Cir. 1975).{/footnote} or a microfilm record.{footnote}FRE 1001(4).{/footnote}  Even a photocopy of a photocopy of a document may be admitted into evidence, if the original and the first copy have been lost.{footnote}United States v. Gerhart, 538 F.2d 807 (8th Cir.1976).{/footnote}

The fairness prong of the federal rule could be invoked where the original of a document that was produced by the other side is incomplete, and the other side has only a duplicate to prove the missing portions.  See also "Original in Possession of Opponent," below.

The party opposing introduction of the duplicate bears the burden of showing a genuine issue as to its authenticity.{footnote}Tyson v. Jones & Laughlin Steel Corp., 958 F.2d 756 (7th Cir. 1992); United States v. Garmany, 762 F.2d 929 (11th Cir. 1985), cert. denied, 474 U.S. 1062 (1986).
3 Saltzburg et al., Federal Rules Of Evidence Manual 1755 (6th ed. 1994).{/footnote}

See also Grayson v. Dungan, 628 So. 2d 445, 448 (Ala. 1993) (when a witness testifies at trial that duplicate is true and correct copy of original, the duplicate is admissible and original need not be produced).

4(b).  Writings Which Are "Collateral"

Originals are not required of writings which are "collateral."   A collateral writing is one which, as defined under the federal rules, "is not closely related to a controllling issue."{footnote}FRE 1004(4);
Cal. § 1504; Lilly v. State, 649 A.2d 1055, 1060 (Del. 1994).{/footnote}  Thus, where the contents of a writing are not what is truly in dispute, secondary evidence is allowed.{footnote}Wigmore § 1242.{/footnote}

4(c).  Party Admissions

The contents of a writing may also be proved through the testimony of a party opponent at trial or in a deposition, or through an admission in writing by that party.{footnote}FRE 1007; N.J. Evid. R. 701(1)(h).{/footnote}  Claimed oral admissions are not considered sufficiently trustworthy.

4(d). Summaries

Summaries may, in some circumstances, be admitted in place of original records which are too voluminous to be examined individually.  See SUMMARIES.  This is sometimes considered an excpetion to the best evidence rule.{footnote}Chapman v. State, 628 A.2d 676, 683 (Md. 1993).{/footnote}

4(e).  Absence of Something in a Writing

The best evidence rule will not prevent a witness from testifying that he or she has reviewed a writing (e.g., a voluminous leger) and that one or more things are not found in the contents.{footnote}United States v. Madera, 574 F.2d 1370 (5th Cir. 1978).{/footnote}

5.  Preference of Duplicates

Where secondary evidence is allowed, most states require that if a duplicate of a writing exists and is available, then that duplicate must be introduced and no other form of secondary evidence is admissible.{footnote}Cal. § 1505.{/footnote} 

The federal rules and some states have no such rule.{footnote}United States v. McGaughey, 977 F.2d 1067 (7th Cir. 1992), cert. denied, 507 U.S. 1019, 113 S.Ct. 1817, 123 L.Ed.2d 447; In re Macmillan, Inc., 186 B.R. 35 (Bankr. S.D.N.Y. 1995).{/footnote}  The nature of the secondary evidence goes only to the weight to be given it by the jury.{footnote}Baroda State Bank v. Peck, 209 N.W. 827 (Mich. 1926).{/footnote} 

6.  Procedure

Whether a foundation has been properly laid under this rule is a decision for the court to make, not the jury.{footnote}FRE 1008. {/footnote}  The offering party must establish admissibility (i.e., that some basis for accepting secondary evidence applies) by a preponderance of the evidence.

Disputes as to whether the claimed original document ever existed, whether one document or another is the original, or whether a duplicate is in fact accurate are questions of fact to be decided by the jury.{footnote}FRE 1008.{/footnote} 

7.  Appeal

A trial court’s decision whether the best evidence rule applies is reviewed for an abuse of discretion.{footnote}State v. Hager, 691 A.2d 1191 (Me. 1996).{/footnote}  Any error through a party’s failure to satisfy the best evidence rule will be deemed waived unless a timely and specific objection is made.{footnote}McIntyre v. State, 463 S.E.2d 476, 480 (Ga. 1995).{/footnote}  See OBJECTIONS.

Bibliography

Dale A. Nance, The Best Evidence Principle, 73 Iowa L. Rev. 227 (1988).
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