§ 30.01 Introduction

• Jurisdiction: United States

§ 30.01 Introduction

To prove the contents of a writing, the "best evidence" rule requires that the original be introduced in evidence unless an exception applies. The label "best evidence rule" is misleading. The rule applies only to writings, recordings, and photographs—and only when proving their contents. There is no general rule requiring the "best evidence." A party generally is not required to introduce real evidence in order to prove its case.¹ A theft case can be proven without introducing the stolen property. A drug possession case can be prosecuted without admission of the drugs.² Thus, a more apt description of the rule is the "original writing" rule.³

Even if the original document is produced, it may be inadmissible under some other rule of evidence—e.g., hearsay rule.⁴

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Notes:

^[1] See Holle v. State, 337 A.2d 163, 166-67 (Md. App. 1975) (stolen marked currency; "It is not always necessary that tangible evidence be physically admitted at a trial. . . . Even when evidence is available it need not be physically offered. Thus, the grand larceny of an automobile may be established merely on competent testimony describing the stolen vehicle without actually producing the automobile before the trier of fact."). Accord United States v. Figueroa, 618 F.2d 934, 941 (2d Cir. 1980) (heroin); Chandler v. United States, 318 F.2d 356, 357 (10th Cir. 1963) (whiskey bottles).

^[2] Only two witnesses may be needed. For example, an arresting officer testifies that she found the defendant holding a package that looked like it contained a controlled substance. She seized it and took it to the crime lab. The second witness is the chemist who testifies that he received this package from the arresting officer and when tested, the substance was revealed to be heroin. Of course, tactically, it is always better to introduce the drugs, but legally it is not required.

^[3] See Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1318 (9th Cir. 1986) ("[T]he [best evidence] rule 'requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy.'"); United States v. Duffy, 454 F.2d 809, 811 (5th Cir. 1972) ("Although the phrase...