Exceptions to the Best Evidence Rule

December 12, 2011

Best evidence is a lot like hearsay.  To understand the rule, you must understand the exceptions.  And, although the best evidence rule exceptions certainly aren’t as numerous as the hearsay exceptions, they are significant. 

There are five major exceptions to the best evidence rule, and they are found in Rule 1004 of the Texas Rules of Evidence.  Rule 1004, which codified existing state common law exceptions, specifically authorizes “other evidence” to prove the contents of a document[1] when the document (or its duplicate[2]):

  1. has been lost or destroyed;
  2. cannot be obtained;
  3. cannot be found in Texas;
  4. is in the possession of an opponent who fails to produce it; or
  5. is offered for a collateral purpose

(These Texas exceptions mirror the Federal Rules of Evidence, except that the federal rules contain no geographical exception equivalent to the third exception.)

 The importance of these exceptions can’t be overstated.  If an exception applies, then the best evidence rule no longer bars the use of secondary evidence to prove document contents.  In practical terms, this means that a witness may, through testimony alone, prove up the contents of a memo or a videotape, without ever tendering the memo or the videotape into evidence.  This is why it is so important to understand the exceptions, the applications and the limitations.

Lost or Destroyed:  This exception generally applies to inadvertent loss or destruction.  Under this exception, a claim that despite a reasonable and good faith effort to locate a document, it cannot be located may be sufficient to permit proof of the contents of a document through testimony or other secondary sources.  While the rule envisions accidental loss or destruction, even documents which have been intentionally destroyed may be proved up through secondary sources, assuming no bad faith on the part of the proponent. For example, in one federal case, the I.R.S. was able to use secondary proof of the contents of a taxpayer’s records, even though the agency itself had destroyed the records because the court found the destruction “negligent,” but not in bad faith.    

Not Obtainable:  This exception provides that secondary sources may be used to prove the contents of a document when it can’t be obtained by any available judicial procedure.  The exception is aimed at documents which are not in the possession of any party to the lawsuit which, despite reasonable efforts, simply cannot be obtained, either by informal persuasion or formal process.  Obviously, this exception would not apply to any document which could be obtained through subpoena duces tecum or deposition discovery subpoena. 

Not in Texas:  You don’t have to cross the Red River to look for documents.  As a practical matter, however, it may not be a bad idea to make the trip, since your opponent will not be precluded from doing so.  And if your opponent should obtain the document, then the exception would no longer apply.  In that event, the secondary source of evidence you planned to introduce at trial would now be inadmissible as violative of the best evidence rule, since the document would now be available in Texas.

Opponent Fails to Produce It:  This is an interesting rule which allows one party to put the other party on notice that proof of a particular document under the other party’s control[3] will be a subject of proof.  If, after being put on notice “by the pleadings or otherwise,” the other party does not produce the original, then secondary sources may be used to prove its contents.  One might wonder why this rule is necessary, given all of the discovery tools available today.  Since this exception applies to hearings as well as trials, it could be particularly useful in situations involving time constraints.  For example, when there is no time to obtain discovery prior to a hearing, or when outstanding discovery has been resisted, the contents of a document which has not yet been produced by the other side may be admissible, as long as adequate notice has been given.  Once on notice, then the other side has two choices:  (1) produce the document, or (2) face the secondary proof of its contents. 

Collateral Purposes:  This is perhaps the most important exception to the best evidence rule, and if an attorney can remember only one thing about the best evidence rule, this is it.  The best evidence rule does not apply when evidence is offered to prove something other than the contents of a document or when the contents do not relate to a controlling issue.  For example, the best evidence rule does not apply when the matter sought to be proven is not content, but notice, service or delivery of a document.   Likewise, if a heavy book falls off a shelf and injures a customer standing below, the best evidence doctrine does not require that the book be produced at trial, as the content of the book is a collateral matter. 

Summary: In this last series of three blogs, we have examined what the best evidence rule is and what it is not.  It is a rule which applies only to “documents” and testimony concerning the contents of documents.  It is a rule which allows a duplicate of any document to be just as admissible as the original, with a couple of narrow exceptions. 

What it is not is a rule which requires that the best witness be called or the best proof be offered at trial.  The application of the best evidence rule does not exclude evidence based on any type of qualitative assessment of the evidence as poor, good, better or best.  Its only aim is to insure accuracy of evidence under the premise that proof of the contents of a document should ordinarily come from the document itself.

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


[1] The term “document” includes writings, recordings or photographs.  TRE 1001.

[2] Originals and duplicates are used interchangeably here, because TRE 1003 elevates the status of a duplicate to that of an original, except under two narrow exceptions discussed in the last blog.

[3] Rule 1004 uses the word “control,” not merely possession.


Using Judicial Notice to Prove Facts

June 25, 2011

Rooted in the ancient maxim, manifesta non indigent probatione (that which is known need not be proved)  judicial notice is believed to be one of the oldest doctrines of common law.  Although archaic,  judicial notice today remains an extremely useful, yet often under-utilized, method of proof  in Texas courts.    

Not only is judicial notice an enormous time-saving device, it also carries with it strong evidentiary value, especially in the civil context, where a jury is instructed to accept as conclusive any fact judicially noticed and will hear no evidence to rebut it.  Texas Rules of Evidence 201(g), Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 at 279 (1944).  (In criminal cases, noticed facts are probative, but not conclusive.)

Judicial notice may be used to prove adjudicative facts (Rule 201), the laws of other states and foreign countries (Rules 202 & 203), as well as city ordinances and administrative agency rules and regulations (Rule 204).  In appropriate circumstances, the court is mandated to take judicial notice, and in many instances, judicial notice may occur sua sponte.  But in all circumstances, the rules require that the opposing side be given notice and an opportunity to be heard on the issue.

With regard to adjudicative facts, there are two types of judicial notice available:  notice of generally-known facts (TRE 201b[1]), and notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Rule 201b[2]).  These two types of facts are quite different and distinguishable from one another.  For example, if the question at trial was whether the earth is round, as opposed to flat (as Flat Earth Society members still contend today), a court could take judicial notice under Rule 201b(1) that the earth is, in fact, round, because it is a fact generally known by persons of average intelligence and knowledge.  However, if more precision was necessary under the facts of a case, Rule 201b(2) would permit judicial notice to be taken that, in fact, the earth is NOT round, but an oblate spheroid, a fact not generally known, but nevertheless capable of accurate and ready determination by resort to reliable sources.

Even when judicial notice is employed, its scope and depth often remain untapped.  For example, few would hesitate to request judicial notice that the city of Fort Worth is located within Tarrant County.  But judicial notice can extend much further – certainly to the fact that a Starbucks is located in downtown Fort Worth on the west side of Houston Street between 3rd and 4th Streets, perhaps even to the fact that they sell beverages in three sizes:  tall, grande and venti.  Bender v. State, 739 S.W.2d 409 at 413 (Tex. App. — Houston [14th], 1987) (permitting judicial notice of the location of an MBank at a particular intersection inHouston).  The scope of judicial notice is not limited by level of detail, but by general knowledge and objective verifiability.

Another example of facts to which judicial notice should be taken are mathematical formulas, the laws of physics and other principles of natural forces, when supplied with necessary computations or information.  Drake v. Holstead, 757 S.W.2d 909 at 911 (Tex. App. — Beaumont 1988) (error found in a trial court’s refusal to take judicial notice of calculations of rates of speed, when supplied with mathematical computations to support it).  By invoking judicial notice in lieu of formal proof in these matters, an attorney can avoid at least two potentially unpleasant scenarios:  (1) putting a jury to sleep with tedious technical or scientific testimony, and, worse yet, (2) subjecting otherwise irrefutable evidence to debate, perhaps outright rejection, behind closed doors during jury deliberations. 

While judicial notice will cover matters such as the fact that there are twelve inches in a foot, it is not available for facts which are subject to reasonable dispute, such as the length of particular objects.  Brune v. Brown Forman Corp., 758 S.W.2d 827 (Tex. App. — Corpus Christi 1988).  This is a general rule, however.  Certainly the length of a football field or the dimensions of a 2005 Hummer H2 would both be ripe for judicial notice, because, again, they are capable of accurate and ready determination (or, in the case of the football field, generally known, at least within our own territorial jurisdiction). 

As a practical pointer, when judicial notice is sought on matters requiring reference to calculations, scientific treatises or the like, this is best heard in pretrial conference.  This will give the court an opportunity to consider whether these facts are the type to which judicial notice may be properly taken and/or whether necessary and adequate supporting information has been provided.  By scheduling the matter for hearing, all parties will be provided the requisite notice and an opportunity to be heard before the court takes judicial notice of the matter.  A ruling at the pretrial stage will also streamline case preparation and trial time by alleviating the burden of gathering and presenting evidence on matters which can be proved (conclusively!) through judicial notice.

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


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