§30.15 KEY POINTS

• Jurisdiction: United States

§30.15. KEY POINTS

The term "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.

Rationale. The nature of writings gives rise to their being singled out for special treatment. The copying of a writing is especially susceptible to the introduction of inaccuracies, and even a minor mistake may have significant legal consequences — for example, in wills, deeds, and contracts.

"Proving contents." The rule applies only when a party attempts to prove the contents of a writing or recording. Typically, this occurs when (1) the event to be proved is a written transaction, (2) a party chooses a written method of proof, or (3) a witness's knowledge is derived solely from having read a document.

Written events; independent events. Some events and transactions, such as those involving wills, deeds, contracts, and judgments, are written transactions, and the rule requires production of the original writing when the contents are sought to be proved. In contrast, Rule 1002 does not apply when the event sought to be proved existed independently of a writing, even if that event has been recorded. For example, if an accused makes an oral confession that is recorded or subsequently reduced to writing, the rule does not apply. The prosecution is not attempting to prove the contents of the recording or writing but rather the independent event (oral confession) that happened to have been recorded. Other examples include proof of the existence of a marriage, the payment of a debt or a purchase, perjured testimony, conversations, as well as earnings in an account.

Written method of proof. If a party chooses to introduce a writing to prove a fact...