14.13 Article X—best Evidence

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

14.13 ARTICLE X—BEST EVIDENCE

14.1301 Index.

2:1001. Definitions

2:1002. Requirement of Production of Original

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2:1003. Use of Substitute Checks ⁶⁴

2:1004. Admissibility of Other Evidence of Contents

2:1005. Admissibility of Copies ⁶⁵

2:1006. Summaries

2:1007. Testimony or Written Admission of a Party

2:1008. Functions of Court and Jury

14.1302 Comments.

A. In General. The final substantive article of the Virginia Rules of Evidence, Article X, deals with the so-called "original-documents" rule, often referred to as the "Best Evidence" rule. There are actually several rules contained in Article X setting forth the principles that govern when a party endeavors to prove what a document said. Virginia law follows mainstream American principles on the basic topics of when an original document must be used (Rules 2:1001 and 2:1002) and when "secondary" evidence about the contents of a document will be permitted (Rule 2:1004).

With respect to what most jurisdictions call the issue of "duplicates," (photocopies and the like) the Virginia Rules of Evidence directly embody the provisions of Va. Code § 8.01-391, which allows use of copies of not only official publications and records, and clerks' records and the like, but also copies of business records. ⁶⁶ "Copies" usable under this rule include any form of recordation now in existence or evolving as technology progresses, including any manner of electronic or "optical" recordation that produces a durable copy, as provided in Rule 2:1005(f).

The use of party admissions where a document is involved amounts to a key exception to the Best Evidence rule (basically, allowing admissions about the contents of an absent document even when those contents are hotly disputed) and Virginia law follows general American contours on

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this topic. ⁶⁷ As in other states and the federal system, the judge rules on the purposes for which a document is being mentioned, whether proof of the document's contents without offering the document itself is permissible, and similar issues. "However, when an issue is raised whether (1) the asserted writing ever existed, or (2) another writing produced at the trial is the original, or (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine." ⁶⁸

In Omychund v Barker, ⁶⁹ Lord Harwicke stated that no evidence was admissible unless it was "the best that the nature of the case will allow."

B. Rule 2:1001. Rule 2:1001...