Best evidence rule

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The best evidence rule is a common law rule of evidence that 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 The 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 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.

England and Wales[edit]

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]

United States[edit]

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[edit]

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. 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.

References[edit]

  1. ^ 1st edition Dublin 1754; there were seven editions in all.
  2. ^ Hooper, Ormerod, Murphy and others (ed.). Blackstone's Criminal Practice (2008 ed.). Oxford. p. 2285. ISBN 978-0-19-922814-0. 
  3. ^ Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37
  4. ^ Federal Rules of Evidence, Rule 1001.
  5. ^ California Evidence Code Section 1521.

External links[edit]