UNDERSTANDING THE BEST EVIDENCE RULE
January 12, 2011 § 8 Comments
I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).
It’s fairly common to hear an exchange like this in court:
Atty 1: How much did you pay for the house?
Atty 2: Objection. The best evidence of what was paid would be the closing statement.
That objection and every one like it should be overruled.
MRE 1002 states:
To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law. [Emphasis added]
The rule only applies and requires the original when a party is seeking to prove the content of the original. Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004). It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter.
The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it. The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph. Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).
An example of (a) would be where the party is trying to testify to the terms of a written contract. The contract itself would be the best evidence, and the original would need to be produced.
An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices. The original invoice would itself establish the claim and would be the best evidence of the transaction.
The rule would not apply to the following situations:
A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records. Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter. On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.
A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.
A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.
The rule does not apply to physical evidence that is not writings, photographs or recordings. Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008). In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.
The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).
So here is the bottom line: A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.
An important caveat: Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible. The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.
MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent. Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.