26.3 Best Evidence Rule, Summaries & the Rule of Completeness

26.3 Best Evidence Rule, Summaries & the Rule of Completeness

The Best Evidence Rule, more accurately called the original writing rule, protects against mistakes and fraud when the exact words of a document or the precise content of a recording matter. The rule of completeness addresses a related concern: misleading the jury by presenting only part of a statement.

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The Best Evidence Rule (Original Writing Rule) (FRE 1001–1008)

Under Federal Rule of Evidence 1002, an original writing, recording, or photograph is required in order to prove its content.

The Cardinal Rule: The Best Evidence Rule does NOT mean a party must produce the "best evidence" available in the abstract. It is strictly an Original Writing Rule. It applies ONLY when a party is seeking to prove the contents of a writing, recording, or photograph.

                      ┌──────────────────────────────────────────────┐
                      │  Is a Writing, Recording, or Photo Involved? │
                      └──────────────────────┬───────────────────────┘
                                             │ YES
                                             ▼
                      ┌──────────────────────────────────────────────┐
                      │ Is the party seeking to prove the CONTENTS?  │
                      │ 1. Writing is legally operative (contract); OR│
                      │ 2. Witness knowledge derives SOLELY from it? │
                      └──────────────┬───────────────────────────────┘
                                     │
                         NO          │          YES
                         ▼           │          ▼
               ┌───────────────────┐ │ ┌──────────────────────────────────┐
               │ BEST EVIDENCE     │ │ │ BEST EVIDENCE RULE APPLIES       │
               │ INAPPLICABLE      │ │ │ Must produce Original or         │
               │ Witness testifies │ │ │ admissible Duplicate (FRE 1003)  │
               │ from independent  │ │ │ unless excused under FRE 1004    │
               │ personal knowledge│ │ └──────────────────────────────────┘
               └───────────────────┘ │

1. When the Best Evidence Rule APPLIES:

1. The Writing is Legally Operative or Dispositive: The document itself creates or extinguishes legal rights and duties. Examples: deeds, wills, written contracts, divorce decrees, search warrants, copyright transfers, or libelous written publications.
2. Witness Knowledge Derives Solely from the Writing: A witness has no independent personal knowledge of the event and testifies exclusively based upon what they read in a document, viewed on a surveillance video, or heard on an audio recording.

2. When the Best Evidence Rule DOES NOT APPLY:

• Independent Personal Knowledge: If a witness personally perceived an event or transaction firsthand, the witness may testify to what occurred without producing the writing or recording, even though a contemporaneous written record, receipt, or video of the event exists.
• Classic Examples: (1) A witness observed a bank robbery in person; the witness can testify to the robber's identity without producing the bank surveillance video. (2) A tenant paid monthly rent in cash directly to the landlord; the tenant can testify to paying the rent without producing the written rent receipt.

3. What Qualifies as an Original vs. Duplicate?

• Original (FRE 1001(d)): The writing itself, or any counterpart intended to have the same effect by the person who executed it. For electronically stored information (ESI), any printout or readable electronic display accurately reflecting the data is an "original."
• Duplicate (FRE 1003): A counterpart produced by a mechanical, photographic, chemical, electronic, or digital process that accurately reproduces the original (e.g., photocopies, carbon copies, scanned PDFs). A duplicate is admissible to the same extent as an original UNLESS: (1) a genuine question is raised about the original's authenticity; or (2) circumstances make it unfair to admit the duplicate.

4. Excuses for Non-Production of the Original (FRE 1004)

Secondary evidence (such as oral testimony, handwritten notes, or drafts) is admissible to prove the contents of a writing if:

1. Lost or Destroyed: All originals are lost or destroyed, and not by the proponent acting in bad faith;
2. Unobtainable: An original cannot be obtained by any available judicial subpoena or legal process;
3. In Control of Opponent: The party against whom the original would be offered had control, was put on notice, and failed to produce it at the hearing; or
4. Collateral Matters: The writing is not closely related to a controlling issue in the litigation.

No Degrees of Secondary Evidence: Under the Federal Rules, if an excuse under FRE 1004 is established, there are no degrees of secondary evidence. A party may prove the contents through a handwritten copy, an oral summary from memory, or a draft—the hierarchy between written copies and oral testimony has been abolished.

5. Voluminous Summaries (FRE 1006)

The court may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court, whether or not the underlying originals or duplicates have been introduced into evidence (FRE 1006, as amended December 1, 2024). Foundational Prerequisite: The proponent must make the originals or duplicates available for examination or copying by other parties at a reasonable time and place, and the court may order the proponent to produce them in court. A chart used only to illustrate other evidence or argument is not a Rule 1006 summary; it is an illustrative aid governed by Rule 107 (Section 24.2).

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Best Evidence Rule: Application Matrix

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The Rule of Completeness (FRE 106)

Under FRE 106, as amended December 1, 2023, if a party introduces all or part of a statement—whether written, recorded, or oral—an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

• Purpose: Prevents misleading impressions created by taking statements out of context.
• Contemporaneous Introduction: The completing portion may be introduced immediately during the opponent's direct examination; the adverse party need not wait until cross-examination or their own case-in-chief.
• Scope: Under the modern rule, the completing statement is admissible even if it would otherwise be hearsay, provided it explains or contextualizes the excerpted portion.

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More Original Writing Rules

Definitions (FRE 1001)

• Writings and recordings consist of letters, words, numbers, or their equivalent set down or recorded in any manner; photographs include still photographs, X-ray films, and motion pictures or videos.
• Original: The writing or recording itself, any counterpart intended to have the same effect by the person who executed or issued it, a print from a photograph's negative, or—for electronically stored information—any printout or other output readable by sight that accurately reflects the information.
• Duplicate: A counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Other Ways to Prove Content

• Public records (FRE 1005): The content of an official record or of a document recorded or filed in a public office may be proved by a certified copy or a copy that a witness testifies is correct. Other evidence may be used only if no such copy can be obtained with reasonable diligence.
• Party admissions (FRE 1007): The proponent may prove content through the testimony, deposition, or written statement of the party against whom the evidence is offered, without accounting for the original.

Judge and Jury (FRE 1008)

The judge decides preliminary questions such as whether an original was lost and whether the proponent acted in bad faith. The jury decides, in accordance with Rule 104(b), whether an asserted writing, recording, or photograph ever existed, whether another one produced at trial is the original, and whether other evidence of content accurately reflects the content.

Recognizing When the Rule Applies

• A witness who heard a conversation may testify about it even though it was also recorded, but a witness who knows what was said only from listening to the recording must produce the recording.
• A witness may testify that a person was employed by a company without producing payroll records, because employment is a fact independent of the records.
• In a prosecution for distributing obscene videos, the content of the videos is at issue, so the videos themselves must be produced.

Completeness in Practice

• Timing: The completing portion is introduced immediately, so the jury does not form a misleading impression while waiting for cross-examination or the adverse party's case.
• Fairness standard: Only portions that are needed to explain or place in context the part already introduced are required; the rule does not permit introducing an entire self-serving statement simply because a small portion was offered.
• Oral statements: Before 2023, Rule 106 covered only written and recorded statements; it now applies equally to oral statements, such as a defendant's statement to police recounted by an officer.