Best Evidence Rule

This page was last substantively updated or reviewed January 2020. (Rev. # 95270)

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• < Documentary Evidence

General Principles

Where the contents of a document are material to the case, the traditional common law Best Evidence Rule (or "documentary originals rule") requires that the party submit the original unless the party is unable to do so. The court can accept a secondary copy where it is satisfied that the original was lost, destroyed or otherwise unavailable all in good faith.

The primary role of the BER is merely to be an "adjunct to authenticity" that assures the court that the document is the same as the one inputted into the computer.

The rule excludes inferior evidence when better is available and permit inferior evidence when better is not available.

This rule arises from a time before the advent of computers and photocopiers when all copying was done by hand. It is sometimes criticized as a rule that has outlived its purpose. There is some suggestion that a lack of original will merely go to weight.

Nevertheless, the best evidence rule is part of the common law. There are a number of statutory enactments that allow for exemption to this rule, such as CEA s. 29 [financial records], 30(3) [business records], 31(2)(c)[government records] .

The BER does not normally prevent a party from testifying as to the contents of a lost or non-seized video.

The party objecting to the admissibility of the evidence cannot rely on the BER where that party is in possession of the original copies of the record at issue.

Purpose to the Rule

The rule's original purpose was "simply to avoid fraud and forgery."

Non-Criminal Cases

In a number of province's rules, there is a presumption of permitting copies of documents as long as the right to inspect the originals remains.

Modern Approach

The more modern approach tends to say that the rule is not to be applied strictly. It should be used “as a guide for choosing the appropriate method of proof”. This will depend on the particular circumstances of the case and what “the nature of the case will allow”. Greater emphasis instead is placed on the existence of a "proper foundation" for the evidence that establishes it as "authentic and accurate."

The evidence can also be considered in light of "secondary evidence" depending on the discretion of the court.

Justifying Use of Secondary Evidence

There is no need to "negate every possibility of the existence of the best evidence", when choosing to rely on secondary (non-best evidence).

It is often only necessary to show that the best evidence was "impossible or highly inconvenient to produce the original."

Generally, there should be no categorical division between primary and secondary evidence as it relates to documentary evidence. The difference in the evidence will normally be a matter of weight.

History

The BER has its origins in the 1700s and up until the 19th century was seen as a fundamental precondition to admissibility of all evidence. The rule was later limited only to documentary evidence and was often referred to as the "documentary originals rule." The standard rule was that nothing short of the original copies must be produced.

The traditional view is that only the "best proof" should be accepted.

The older rule went so far as requiring a signature on a given document or else it would be deemed a copy.

Where the original has been established as destroyed, a copy will suffice.

Use Cases

Video Tape Evidence

The rule does not preclude the admission of viva voce evidence of persons who viewed a video that was not in evidence. there is similarly no prohibition against oral testimony as to the contents of the untendered record.

Electronic Records

Section 31.2 creates a statutory exemption to the BER in connection with electronic documents on the basis of proof of integrity.

Text messages

As a general rule, the best evidence rule does not require that the Crown admit a certified copy of text messages as they are found in the service providers' databases.

The officer's failure to seize and analyze the accused's phone or seek out service provider records does not normally amount to negligence.

The taking of low quality screen shots of the screen of a witnesses phone, while permitting the owner to delete the text messages afterwards can be problematic, but are not necessarily a bar to the admission of the texts.

Admissibility of Copies

At common law, there is no requirement that the party seeking admission must provide notice, an affidavit or certificate authenticating that it was made by the person who made the copy.

Copied records from production orders are deemed to be originals under s. 487.0192(5), (6).

See Also

• see Electronic Documents and Records