Duplicates and the Best Evidence Rule

November 25, 2011

Your client has a perfectly legible photocopy of a deed, contract or other document, but despite a diligent effort to locate the original, it simply cannot be found.  In order to prevail, you know that that the contents of the original document must be proved at trial.  Can you overcome a “best evidence” challenge to the photocopy?  “Not bloody likely,” would have been the answer of the day in merry olde England.  In modern times, however, the prospects are substantially improved. 

For centuries, the common law best evidence rule provided that in order to prove the contents of a document, the original document must be produced in evidence at trial.  While this basic tenet still exists in Rule 1002 of the Texas Rules of Evidence, the codified version of the best evidence rule, perhaps the most important aspect of the modern version appears in the last ten words of the rule:

To prove the content of a writing…the original…is required except as otherwise provided in these rules or by law.

And one need only look to the very next rule – TRE 1003 – to find an exception that some would argue swallows the rule. 

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

As codified, the best evidence rule provides no bar to the use of a duplicate instead of an original, except under two narrow circumstances: 

  1. when the original’s authenticity is questioned, or
  2. when unfairness would result.  

In practical terms, this means that any objection to the introduction of a duplicate in lieu of an original should either raise a question of authenticity or unfairness. 

A bare-bones “best evidence” objection would not be proper, as it would not apprise the court of the reason why the duplicate should be excluded. 

Allowing duplicates makes sense.  With modern-day reliance on highly-accurate document reproduction technology, including faxes and scanners, and in an era when even record custodians don’t necessarily retain records in their original form, the contents of most documents should be able to be satisfactorily proved without anyone having to actually touch the original.  Only when there is a legitimate question of whether the underlying document is authentic or whether it’s fair to rely on a duplicate should the original be required. 

Authentication:  Up until the end of the 20th century, authentication could pose a legitimate concern to an attorney who sought admission of a document at trial which had been obtained from the other side in discovery.  However, with the promulgation of Rule 193.7 of the Texas Rules of Civil Procedure in 1999, which provides that any document produced by a party in response to a discovery request is automatically authenticated for use against the producing party, these authentication problems have disappeared.  Now the only documents which need formal authentication are the documents which are obtained from other sources. 

Keep in mind, however, that the issue is not whether there’s a question as to the duplicate’s authenticity.  Only when a question is raised as to the authenticity of the original will the duplicate be disallowed.  At least one court has held that a duplicate of a self-authenticated document is admissible under Rule 1003.  Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997) (holding a facsimile of a certified copy of a court record was admissible).   Englund was decided on a peculiar set of facts (the fax was sent from the office which also provided the authentication), and the court certainly did not go so far as to hold that authenticity could never be challenged as to all duplicates of self-authenticated documents.  However, a very strict reading of Rule 1003 would support such an argument.

Unfairness.  Assuming no authentication issues, a claim of unfairness will provide the only remaining hurdle to admissibility of a duplicate in lieu of an original.  Unfortunately, this evidentiary point is rarely raised on appeal, so there is little to guide in its application.  In Ladd v. State, a criminal defendant did argue that poor-quality photos of a crime scene were unfair due to their failure to accurately depict the scene.  This argument did not meet with success, however.  The sponsoring witness’ testimony that the photos did fairly depict the scene was held sufficient to satisfy Rule 1003.  3 S.W.3d 547 (Tex. Crim. App. 1999).

Scope of RuleLadd v. State also demonstrates that when it comes to modern-day application of the best evidence rule, it’s not just about documents anymore.  Pursuant to Rule 1001, the best evidence rule applies to:

  • Writings and Recordings – consisting of “letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation;” and
  • Photographs – consisting of “photographs, x-ray films, videotapes and motion pictures.” 

Given the broad scope of Rule 1001, using duplicates in lieu of originals pursuant to Rule 1003, would encompass using photocopies of original photographs, duplicate recordings of original DVDs, videotapes and audiotapes, and scanned images of x-ray films, etc.

Allowing for duplicates to be used instead of originals provides a significant exception to the original doctrine of best evidence.  But the exceptions don’t stop there.  Next time we’ll take a look at what to do when your client can’t even manage to find a duplicate.

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


Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
- Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

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


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