Best Evidence Rule Chapter

AuthorCollin Miller
Pages1-31
Best Evidence Rule Chapter
Introductory Note
In 2009, the Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States Courts decided to “restyle”
the Federal Rules of Evidence. The goal in this project was to make
the Rules more user friendly rather than to enact substantive changes.
At the end of each section of this chapter, there is a side-by-side
comparison between the prior language of each Rule in Article X and
the language of each new “restyled” Rule. Because the changes were
intended to be stylistic only, everything discussed in this chapter
should continue to be good law after the “restyled” Rules take effect
on December 1, 2011.
I. Historical Origins of the Best Evidence Rule
Pre-Roman inhabitants of England, who were mostly illiterate, placed
great importance on ceremony and “viewed written documents
affecting property or contractual rights not as mere indicia of those
rights, but as the rights themselves.” Cynthia A. DeSilva, California’s
Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary
Evidence, 30 MCGEORGE L. REV. 646, 648 (1999). While this mindset,
dubbed the “medieval mind” by John Henry Wigmore
1
eventually
dissipated before disappearing entirely in the early 1800s, it
permeated evidence law, setting the stage for both the doctrine of
profert in curia
2
and the Best Evidence Rule. In courts of law, the
ancient pleading doctrine of profert in curia required a party seeking
relief based upon a written instrument to allege that he could produce
the original. If a party could not produce the original document when
its contents were at issue, he literally lost the rights it allegedly
created.
1
See John Henry Wigmore, WIKIPEDIA, http://en.wikipedia.org/wiki/
John_Henry_Wigmore (last visited Jan. 13, 2012).
2
See Definition of Profert in Curia L, BLACKS LAW DICTIONARY,
http://blackslawdictionary.org/profert-in-curia-l/ (last visited Jan 13, 2012).
Closely related to the doctrine of profert in curia is the Best Evidence
Rule, also known as the Original Document Rule. Under the Best
Evidence Rule, first enunciated in Ford v. Hopkins, (1700) 91 Eng.
Rep. 250, 250-51 (K.B.), the proponent of evidence concerning the
contents of a written document had to produce the original
document or account for its nonproduction. See Solomon Salako,
Chapter 13: The Hearsay Rule, INSITE LAW MAGAZINE,
http://www.insitelawmagazine.com/evidencech13.htm (last visited
Jan. 13. 2012). If the proponent could neither produce the original
document nor provide a satisfactory reason for its nonproduction, he
could not prove the contents of the document through secondary
evidence such as witness testimony or a handwritten copy. Courts
applied this Best Evidence Rule with an understanding of the central
position that the written word occupies in the law and the knowledge
that “a slight variation of words may mean a great difference in
rights.” Johnson v. Sourignamath, 816 A.2d 631 (2003). The requirement
that the proponent of a document produce an original or account for
its nonproduction was thus an effort to ensure that a party's
substantive rights were not affected by the possibility of fraud or
errors of human transcription and memory attendant in handwritten
copies and testimony.
The twentieth century witnessed the invention of new technologies,
such as the process of xerography
3
, invented by attorney Chester
Carlson
4
in 1937, which “revolutionize[d] the document reproduction
industry” because originals could now be reproduced, ostensibly
without the errors inherent in human transcription. SCM Corp. v.
Xerox Corp., 645 F.2d 1195, 1197 (2d Cir. 1981). In response to these
new technologies, states began enacting exceptions to the Best
Evidence Rule that allowed for the admission of “duplicates” or
“duplicate originals” created without manual transcription even when
proponents could not account for the nonproduction of originals.
3
See Xerography, WIKIPEDIA, http://en.wikipedia.org/wiki/Xerography (last visited
Jan. 13, 2012).
4
See Chester Carlson, WIKIPEDIA, http://e n.wikipedia.org/wiki/Chester_Carlson
(last visited Jan. 13, 2012).

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