Best evidence rule - AbsoluteAstronomy.com

The best evidence rule is a common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

rule of evidence

Evidence (law)

The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...

which can be traced back at least as far as the 18th century. In Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33, Lord Harwicke stated that no evidence was admissible unless it was "the best that the nature of the case will allow". The publication ten years later of Gilbert's enormously influential Law of Evidence, a posthumous work by Sir Jeffrey Gilbert

Jeffrey Gilbert (judge)

Jeffrey Gilbert was an English judge and author who was Lord Chief Baron of the Exchequer in both Ireland and England and later became renowned for his legal treatises, none of which were published in his lifetime.-Family and early career:...

, Lord Chief Baron of the Exchequer

Lord Chief Baron of the Exchequer

The Chief Baron of the Exchequer was the first "baron" of the English Exchequer of pleas. "In the absence of both the Treasurer of the Exchequer or First Lord of the Treasury, and the Chancellor of the Exchequer, it was he who presided in the equity court and answered the bar i.e...

, established the primacy of the best evidence rule, which Gilbert regarded as central to the concept of evidence. The general rule is that secondary evidence, such as a copy or facsimile

Facsimile

A facsimile is a copy or reproduction of an old book, manuscript, map, art print, or other item of historical value that is as true to the original source as possible. It differs from other forms of reproduction by attempting to replicate the source as accurately as possible in terms of scale,...

, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability.

The rationale for the best evidence rule can be understood from the context in which it arose: in the eighteenth century a copy was usually made by hand by a clerk (or even a litigant). The best evidence rule was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy.

In the age of digital facsimiles, etc., the rule may be more difficult to justify. The likelihood of actual error (as opposed to mere illegibility) through copying is slight. The balance of convenience favours avoiding needless effort and delay where there is no dispute about the fairness and adequacy of a photocopy. Further, it is by no means clear what the "original" of an electronic communication such as an e-mail

E-mail

Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...

actually is: as a great many electronic "copies" of a message might come into existence from creation to receipt. The likelihood of fraud, however, is the same as before—or perhaps higher due to the ease of altering digital copies which do not have cryptographic authentication.

The best evidence rule is also thought to be the basis for the rule precluding the admissibility of hearsay

Hearsay

Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

evidence, although the two rules are now quite distinct.

England and Wales

Blackstone's Criminal Practice states that:

The best evidence rule, which was used in the 18th and early 19th centuries as an exclusionary principle, i.e. to prevent the admission of certain evidence where better evidence was available, is now all but defunct.

Lord Denning MR has stated:

The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available on one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.

United States

The best evidence rule has been codified in Rules 1001 to 1008 of the Federal Rules of Evidence. These rules generally require the original or reliable duplicate of any "writing, recording, or photograph" when the content of that evidence is given legal significance by substantive law (such as a contracts or copyright dispute) or by the parties themselves (such as using a video recording of a bank robbery). The rule is only a general preference, as rules 1004 to 1007 permit exceptions when the original is unavailable, only of collateral importance, a public record, burdensome, or admitted by the other party in writing or deposition. Rule 1008 gives judges the power to determine whether evidence satisfies these rules and should be submitted to the jury, with the exception that evidence should always be submitted for jury review when an issue is raised whether: (a) the original ever existed, (b) the evidence offered is in fact the original, or (c) whether secondary evidence correctly reflects the contents of the original.

Many states model their evidence rules on the FRE and usually have corresponding versions. However, California has adopted the "secondary evidence rule" by statute, so that it is normally not necessary to introduce the original of a writing into evidence.

Canada

Canada inherits the best evidence rule from the Common Law of Great Britain. For example, the Immigration and Refugee Board provides the following definition

"The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce."

citing Doe d. Gilbert v. Ross (1840) 7 M. & W. 102, 151 E.R. 696 (Exch.) as the source. This page then provides the clarification that

"While this rule originally applied to all evidence, it has been restricted in its application to documentary evidence: if the original document is available, it must be produced. Otherwise, all relevant evidence is admitted into evidence, and whether it is the best evidence available, simply goes to weight."

The documentary aspect of best evidence is taken up in the Canada Evidence Act

Canada Evidence Act

The Canada Evidence Act is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by common law, the Act is not comprehensive....

. PIPEDA modified this act to include provisions for electronic best evidence, viz,

Refer to Secure electronic signature and digital signature

Digital signature

A digital signature or digital signature scheme is a mathematical scheme for demonstrating the authenticity of a digital message or document. A valid digital signature gives a recipient reason to believe that the message was created by a known sender, and that it was not altered in transit...

for more information.

External links

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