The best evidence rule is a common law rule of 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,[1] a posthumous work by Sir Jeffrey Gilbert, Lord Chief Baron of the Exchequer, 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, 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 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 evidence, although the two rules are now quite distinct.
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Blackstone's Criminal Practice[2] 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.[3]
The best evidence rule has been codified in Rules 1001 to 1008 of the Federal Rules of Evidence.[4] 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.[5]
Canada inherits the best evidence rule from the Common Law of Great Britain. For example, the Immigration and Refugee Board provides the following definition
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
The documentary aspect of best evidence is taken up in the Canada Evidence Act. PIPEDA 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.
Refer to Secure electronic signature and digital signature for more information.