Best Evidence Rule

The best evidence rule is a rule of evidence that requires an original document, photograph, or other piece of evidence be introduced to the court to prove the contents of that same item. As an example of the best evidence rule’s purpose, consider a plaintiff arguing that a specific provision to a contract didn’t exist. The parties must produce the original contract, rather than a photocopy.

The purpose for the best evidence rule is to help ensure the court receives unaltered evidence that is legible, or clearly perceivable in the case of video and audio recordings. To explore this concept, consider the following Best Evidence Rule definition.

Definition of Best Evidence Rule


  1. A rule of evidence that holds an original document, photograph, recording, or other piece of evidence is required to prove


1400-1450       Middle English evicten

What is the Best Evidence Rule

In the U.S., Article X, Rule 1002, states:

“An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

This rule applies to written evidence, such as a lease; as well as to audio recordings, such as voicemail messages; video recordings, such as wedding videos or cell phone videos; and photographs. Any type of evidence which purports to prove itself. For instance, the amount of rent a tenant has agreed to pay can be proven by the lease. Just what the lease says – should there be a disagreement – can only be proven by the original, which is the best evidence.

History of the Best Evidence Rule

In 18th century England, Philip Yorke, 1st Earl of Hardwicke – a prominent lawyer of the time – made the argument that no evidence should be admissible in court, unless it is ” the best that the nature of the case will allow.” The rule followed that secondary evidence would not be admitted if the original evidence existed. This made a great deal of sense at the time, as copies of documents were made by hand, often by clerks, though even litigants might have hand-copied a document. In such a case, there may very well have been significant error, nor could fraud be written off.

Best Evidence Rule Misunderstood

In some cases, the best evidence rule has been misunderstood. This rule does not mean that copies of documents or other evidence can never be used in court – only that, if the actual contents of that evidence is in question, the best evidence to prove it is the original.

For example:

Maggie and Brian, her ex-boyfriend, are in small claims court. They are arguing about whether or not Maggie gave Brian an expensive smartphone as a gift, or whether she intended that he repay her. Brian presents the judge with a printout of a text conversation wherein it appears Maggie tells me “No problem, don’t worry about it.” Brian claims this regards the “gift” of the cell phone.

In this example, the best evidence rule provides that the most reliable means of proving what was actually said in that text conversation is the original texts themselves. The judge asks the parties to hand him their cell phones, cued up to the conversation. He discovers that text bubbles appearing on the paper copy provided by Brian were part of an entirely different conversation. In fact, Maggie’s original texts – provided on her phone, rather than printed out – show Brian telling her he’ll pay her when he is able.

Application of the Best Evidence Rule

As this rule does not require a party to put his best evidence forward in every instance, it is necessary to determine whether – and how – the rule applies. If the rule applies, then determine whether the original is required, or if there is an exception.

In the application of the best evidence rule, it is generally held that a duplicate of an original document, writing, photo, or recording is admissible, just the same as the original. This is not true if the duplicated evidence is unfair to admit – there being a conflict over whether the duplicate is correct; nor is it true if there is a dispute as to the authenticity of the original. When such disputes arise, the original evidence must be presented at court – if that is possible.

There are exceptions to this requirement, however. If the original has been lost or destroyed, or if it cannot be obtained due to some reasonable obstacle, the court may accept the copied evidence, or it may require some other form of evidence or testimony. Other circumstances in which the original may not be required is if a party claims it is in the possession of his opponent, or if it is an unimportant piece of evidence.

Best Evidence Rule Example in Labor Lawsuit

In 2008, the Federal Court of Appeals heard a case in which two employees of a specific McDonald’s franchise claimed they had been denied fair wages. The plaintiffs claimed that their employer – Ed Donnelly Enterprises, Inc., owner of the McDonald’s franchises – had paid them less that what they had actually earned in two ways. The first was to require plaintiffs to perform their duties “off the clock,” punching them in late, or having them continue working after they had punched out.

The other way in which plaintiffs accused Donnelly of violating their rights under the Fair Labor Standards Act (“FLSA”) was to alter the times tracked by the timekeeping computer, to show the employees has having worked fewer hours than they actually worked. During the proceedings at trial court, the plaintiffs submitted affidavits describing the process by which they began and ended work – and how they were clocked in and out of work – every day. They had also testified in depositions before trial.

Donnelly objected to admission of the plaintiffs’ affidavits, saying they differ from their testimony at deposition, and that they should be excluded based on the best evidence rule. The trial court granted that motion, and the cases were dismissed.

The appellate court was tasked with determining whether the trial court had made an error in not admitting the affidavits as evidence, and in granting a summary judgment against plaintiffs. The plaintiffs’ claim was that Donnelly had withheld or destroyed the original computerized evidence, which would have shown that the defendant had made improper changes to the employees’ time sheets.

In this example of best evidence rule application, the appellate court ultimately vacated the summary judgment regarding the issue of altered timesheet claims, and remanded the case back to the trial court.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Summary Judgment – A final decision on the case, handed down by the judge on the basis of the statements and evidence presented, without a full trial.