The Best Evidence Rule – Its Origins in Common Law

It’s a doctrine as old as the Middle Ages, yet it still lingers in the law.  Codified, modified, expanded almost beyond all recognition, the Best Evidence Rule remains the source of one of the most frequently misused objections at trial.  In the next series of posts, we will examine this most misunderstood doctrine, from common law to the codified rule, and its applicability to the modern-day practice of law.

It is often true that the best place to start in explaining what something is, is to explain what it is not.  What the best evidence doctrine is not is a rule which measures the value of evidence.  The law does not demand that an attorney produce the very best evidence to prove a fact in dispute.  Anything less than best – good, better or even poor evidence – if it tends to prove or disprove a material fact at issue, may be given probative value at trial without necessarily being subject to a best evidence objection.

For example:  A person makes a statement against interest in the presence of three people – the local constable, the parish priest and the village idiot.  Later at trial, the lawyer calls the village idiot to the stand to prove up the contents of the statement made.  Even though most would agree that testimony from either of the other two witnesses – the constable or the priest – would be better, the village idiot’s testimony can’t be stricken on the basis of a best evidence objection.  Just because better evidence exists, or a better source of evidence is available, doesn’t necessarily invoke the best evidence rule.[1]  The best evidence rule was not designed to be used as a method to critique an opponent’s evidence, but instead was developed for the purpose of insuring that evidence received has reliability.

At its inception, the common law best evidence rule was directed to disputes involving written documents.  To understand the source and rationale of this rule, perhaps it would help to understand its historical context.  The best evidence doctrine finds its roots in the same era as that of Johannes Gutenberg.  It was developed at a time when documents were rarely reproduced, and if they were, they were reproduced by hand.[2] 

Oftentimes the rights asserted by parties in court are derived from a written document, such as a will or a deed, and, historically speaking, reproductions or oral testimony regarding the content of such documents was simply not reliable.  Because of these circumstances, a best evidence rule emerged, requiring that if a document was the source of the rights, duties or responsibilities of a party, the original document itself should be examined to determine its contents.  Hand-written reproductions, or someone’s mere recollection or belief as to the contents of a document, were considered fraught with too much potential for human error or outright fraud. 

Texas courts continue to examine the purpose for this age-old doctrine.  Even in the modern era, four somewhat overlapping reasons have been advanced to justify a rule preferring production of the original: 

  1. The nature of documents is often such that the exact words are “of more than average importance, particularly in the case of operative or dispositive instruments … where a slight variation of words may mean a great difference in rights.”
  2. Secondary evidence — whether parol testimony or copies — is susceptible to both human and mechanical error.  The rule, therefore, enhances the probability of accuracy.
  3. The rule promotes the prevention of fraud because it allows the parties to examine documents for any defects or alterations, and it dampens any desire to color testimony as to the contents of documents, since any testimony is subject to immediate corroboration.
  4. The appearance of the original may furnish information as to its authenticity and significance that may be lacking in a copy, such as handwriting, paper and the like.

As with most new rules, the best evidence rule was for many years strictly enforced.  However, as courts began to realize the harsh consequences that sometimes resulted from such a strict application of the rule, exceptions developed.  Courts slowly began to accept some secondary evidence to prove contents of writings, especially in circumstances where the original had been lost or destroyed.  Over time, as technology continued to advance, even more flexibility was permitted in the substitution of copies for the original.

Given the fact that the best evidence doctrine was developed in an era as foreign to us today as is life on other planets, one may wonder whether it should have any place in our current body of law.  In modern times, where even the smallest businesses, and many private homes, are equipped with scanners and photocopiers, it is surprising that the doctrine hasn’t gone the way of the dinosaurs.  But the doctrine has survived, primarily because, unlike the dinosaurs, it has adapted to the changing world.   

Many would argue that the modern, codified version of the best evidence rule, which is found in Article 10 of the Texas Rules of Evidence, bears little resemblance to its ancestor in common law.  It is true that the best evidence rule has been liberalized considerably, but its primary purpose remains intact – to assist in the search for truth by minimizing opportunities for mistake and fraud in the introduction of evidence at trial.

In the next post, we will discuss the best evidence rule in the 21st century.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] At least one legal scholar has cited Young v. Young as an example of a Texas case which misapplies the best evidence rule in a similar way.  In that case, the court held, albeit in a footnote, that the court clerk’s file marks were “the best evidence” of when a document was filed.  854 S.W.2d 698 (Tex. App. – Dallas 1993).  Although the court clerk’s file marks might be the best evidence in a qualitative sense, the best evidence rule, applied correctly, shouldn’t bar other evidence to prove the date of filing. 

[2] Even with the invention of Gutenberg’s revolutionary printing press, Bibles could only be printed six pages at a time, and required 100,000 pieces of type.  The making of the type alone was a two-year process, and the setting up of pages prior to printing took at least a half a day per page. 

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