best evidence [English]

InterPARES Definition

n. ~ Law · The principle that the original of a writing, document, or photograph must be submitted as evidence at trial so that there is no question as to its authenticity, integrity, and accuracy.

General Notes

The United States Federal Rules of Evidence, Rules 1001-1008, codify 'best evidence'. The rules indicate a preference for the authentic original, but allow for exceptions for reliable copies if the originals are not available.


  • Edwards 2014 (†617 p.10 ): After the proponent establishes that the evidence is relevant, authentic, and not hearsay, it still must over-come the best evidence rule. Under this rule, “[t]o prove the content of a writing, recording or photograph, the original writing, recording or photograph is required.” For electronically stored information, “original” means any printout – or other output readable by sight – if it accurately reflects the information. This principle is confirmed by case law that consistently recognizes that “so long as it accurately reflects the data,” printout or duplicate copies of electronic evidence are admissible. Proving that the document “accurately reflects the data” can be quite difficult given the malleable nature of [electronically stored information] and the limited information provided by a mere copy of the most recent version. To overcome this obstacle, the proponent must establish that the information, or data, has not changed since it was first created. Absent such proof, the document does not “accurately reflect the data” that gave rise to its creation. Of course, these problems do not apply if the proponent of the evidence is only trying to establish that the proposed information is the most recent version of the document in question. (†1408)
  • Fed. R. Ed. (LII) 2014 (†552 Rule 1002. Requirement of the Original): An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. (†914)
  • Forsheit 2010 (†618 p.6): Like any other litigant purporting to introduce ESI as evidence, a litigant introducing cloud data must be able to demonstrate that the ESI [electronically stored information] is relevant and authentic, that it is not precluded by the hearsay rule (or fits within one of its exceptions) or the best evidence rule, and that its probative value is not substantially outweighed by the danger of unfair prejudice. As noted by the court in Lorraine : Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Litigants may find a number of these evidentiary hurdles particularly challenging when it comes to cloud data, especially authenticity and hearsay. The proponent of even an email, blog post, IM, tweet, or other communication that resides only in the cloud may need to secure declarations, deposition testimony, or even live testimony of the author(s), the recipient(s), the data custodian, and/or the cloud provider itself. The same analysis must be considered for each and every such communication. (†1409)
  • Gazaryan 2013 (†624 p.244): Authenticity "by no means assures admission of an item into evidence, as other bars, hearsay for example, may remain." Conversely, the Best Evidence Rule puts an additional safety check in preventing unreliable evidence. Finally, even if an exhibit is eventually admitted the jury decides how much weight to give to any particular piece of evidence based on both parties' testimonies, and thus serves as the final arbiter of the evidence. (†1417)
  • Gilbert 1791 (†702 p. 3-4): The first, therefore, and most signal rule in relation to evidence, is this; that a man must have the utmost evidence the nature of the fact is capable of. For the design of the law is come to rigid demonstration in matters of right, and there can be no demonstration of a fact without the best evidence that the nature of the thing is capable of; less evidence doth create but opinion and surmise and does not leave a man the entire satisfaction that arises from demonstration; for if it be plainly seen in the nature of the transaction, that there is some more evidence that doth not appear, the very not producing it is a presumption that it would have detected something more than appears already, and therefore the mind does not acquiesce in any thing lower than the utmost evidence the fact is capable of Per Holt (†1602)
  • Mambl 2013 (†619 p.125): The court further pointed out that the law must keep abreast of technological changes as they affect the way of doing business. The conclusion that can be drawn from this case is that, although the evidence Act of Tanzania did not recognize the admissibility of electronic evidence, the court departed from the ‘best evidence rule’ and accepted electronic evidence by giving it equal weigh with physical evidence that is based on original documents. The court indeed made an important statement that was directed to the government and legislators by stating that it would, however, have been much better if the position were clarified beyond all doubt by legislation rather than judicial intervention. (†1410)
  • Miller 2012 (†625 p.12): Courts applied this Best Evidence Rule with an understanding of the central position that the written word occupies in the law and the knowledge that “a slight variation of words may mean a great difference in rights.” The requirement that the proponent of a document produce an original or account for its nonproduction was thus an effort to ensure that a party's substantive rights were not affected by the possibility of fraud or errors of human transcription and memory attendant in handwritten copies and testimony. (†1418)
  • O'Leary 2009 (†620 p.3): The best evidence rule is a common law rule of evidence that dates back at least to the 1700s. The justification for the rule can best be understood by considering the circumstances in which it arose. In the eighteenth century, copies of documents were typically prepared by hand; so the basis for the rule was the thought that if an original document was not examined, there was an increased possibility of fraud or mistake when relying upon the accuracy and veracity of a copy. However, with the development of a myriad of sophisticated electronic devices to accurately create, copy, and print documents, the rationale for the rule has been significantly eroded. As a result, the best evidence rule has evolved over time to reflect and incorporate the ever-present and changing effects of technology in our society. Even though today documents that are created, stored, and printed electronically are routinely admitted into evidence without undue expense or delay--provided there is no dispute regarding fairness or the document's authenticity--pitfalls still remain. In particular, given the myriad different forms that electronic information can come in, practitioners need to expand their concept beyond traditional documents and consider whether any information stored electronically is subject to the best evidence rule. (†1411)
  • O'Leary 2009 (†620 ): The need to satisfy the best evidence rule when seeking to admit ESI [electronically stored information] is a common hurdle faced by parties in both civil litigation and criminal cases. The use of computers and other electronic devices for creating and storing information has largely replaced traditional methods of recordkeeping. Communicating by electronic mail, text message, and instant message is now an ordinary occurrence. Electronically stored information comes in a variety of forms, including email, websites, Internet postings, digital photographs, and computer-generated documents and data files. ESI also includes voice mails, instant messages, e-calendars, audio files, data on handheld devices, animation, metadata, graphics, spreadsheets, drawings, and other types of digital data. Understanding the interplay between ESI and the best evidence rule allows litigants to effectively plan for having their electronic evidence admitted regardless of how that information is created, stored, retrieved, or printed. The definition of "writings, recordings, and photographs" set forth in Federal Rule of Evidence 1001 expressly includes evidence that is electronically generated and stored. Where computers and other electronic devices are used to create and store records, the display of such information is typically accomplished through printouts. Over the past several decades, printouts of electronically stored information have become common evidence at trial, and the law relating to the relationship between ESI and the best evidence rule continues to develop as technology continues to transform the way we live and work. (†1412)
  • Ritvo, et al. 2007 (†616 p.6): Any written, recorded, or photographic evidence that a party seeks to admit into evidence is also subject to the best evidence rule, Federal Rules of Evidence 1001, et seq. Under this rule, a party seeking to admit a writing, recording, or photograph must submit the original to prove its content. The definition of an "original" states: "If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" Further, duplicates are admissible to the same extent as originals, unless there is a genuine question as to the authenticity of the original or, under the circumstances, it would be unfair to admit the duplicate in lieu of the original. When a plaintiff presents a printout of exactly what appeared on a Web page, in the form in which it appeared, the court is likely to find that it constitutes an "original" in accordance with the definition in Rule 1001(c). When a plaintiff seeks to admit evidence of comments made in chat rooms and other online forums by presenting the text of the online discussions copied into a new document, however, the court should scrutinize the evidence more closely because of its susceptibility to tampering. (†1407)
  • Wex 2014 (†500 s.v. "best evidence rule"): The best evidence rule applies when a party wants to admit as evidence the contents of a document at trial, but that the original document is not available. In this case, the party must provide an acceptable excuse for its absence. If the document itself is not available, and the court finds the excuse provided acceptable, then the party is allowed to use secondary evidence to prove the contents of the document and have it as admissible evidence. The best evidence rule only applies when a party seeks to prove the contents of the document sought to be admitted as evidence. (†913)
  • Wigmore 1935 (†623 p.219 (mentioned in Black's 2009)): "And today, though the cant phrase is sometimes invoked, and though an inference may be made against a party who fails to produce what might be better evidence, yet no court will in general exclude relevant evidence because there might be better evidence available." (†1416)
  • Wikipedia (†387 s.v. "best evidence rule"): [The Personal Information Protection and Electronic Documents Act] modified the [Canada Evidence Act] modified this act to include provisions for electronic best evidence, viz, ¶Application of best evidence rule – electronic documents ¶31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. Presumptions regarding secure electronic signatures ¶31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting (a) the association of secure electronic signatures with persons; and (b) the integrity of information contained in electronic documents signed with secure electronic signatures. (†916)