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:
- when the original’s authenticity is questioned, or
- 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 Rule: Ladd 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