If the original of a document or thing can be produced through the exercise of reasonable

diligence, then only the original is admissible ... and no copy can be used as a substitute.
If failure to produce the original is satisfactory explained, secondary evidence is admissible, and
the burden shifts to the party objecting to the secondary evidence (the copy) to show it is not
what it purports to be.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised
as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.
Re (1) genuine question as to the authenticity of the original
A document is authenticated when the proponent offers "evidence sufficient to support a finding
that the matter in question is what its proponent claims.” The burden of proof for authentication
[of documents] is slight. All that is required is a foundation from which the fact finder could
legitimately infer that the evidence is what the proponent claims it to be.
McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985)
Re (2) unfair to admit the duplicate in lieu of the original:
Mere speculation or supposition that an original document may have contained information that
the duplicate did not, or vice versa, does not amount to a showing that it would be unfair to admit
the duplicate and thus does not preclude admission of the duplicate under rule 1003. Equico
Lessors, Inc. v. Tak’s Automotive Service, 680 P.2d 854 (Colo. App. 1984).
A copy of a check was admissible as a duplicate of the original where defendant failed to show
that the original had been tampered with or altered in any way or that the copy was not what it
purported to be. United States v Mulinelli-Navas, 111 F.3d 983 (1st cir 1988).

Royce <roycemit@...> wrote:

I am sending this to the group because it is so well written. I am not endorsing
this product by any stretch of the imagination, but his discourse on the Best
Evidence Rule is very well written, short, and on point. In fact, you could get a lot
worse procedural information on the internet than this attorney produces. At a
minimum, I would suggest getting on his email list. You'll get other emails like the
one below.
I've left the subscribe link below at the bottom just in case anyone wants to
subscribe. Also, for $219 you will get more information in the form of their 2 day
course. Again, I'm not recommending it, but I'm not saying that it isn't a good
value for the money. I've not gotten the course. But, I have gotten these Tips for
some time and he is always dead on with his advice.
Royce

Tips & Tactics

The Best Evidence Rule ...

Winwth Jurisdi ction ary!

Don't get caught like this fellow, trying to get a document into evidence
that isn't the "best evidence".
If the other side objects, you'll lose!
Rule 1002 of the Federal Rules of Evidence (after which nearly all state
rules of evidence are patterned) states, "To prove the content of a
writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules or by
Act of Congress."
Typically, state rules, such as this one from Florida, follow suit. "Except
as otherwise provided by statute, an original writing, recording, or
photograph is required in order to prove the contents of the writing,
recording, or photograph." Rule 90.952, Florida Rules of Evidence. Your
state's evidence rules no doubt have the same provision.
This is sometimes called the "Best Evidence Rule" and forms a handy
objection when the other side in your case offers a copy instead of the
original of a document, recording, or photograph.
Suppose your opponent offers a Xerox® copy of some alleged cancelled
check in an effort to prove his client paid some bill you claim is due and
owing. You object. "Objection, your Honor. Best evidence rule." The
judge may ask (or you will), "Where is the original?" If the other side
replies, "Oh, it's back at my client's office in the company safe," or, "My
client's accountant has the original," then you renew your objection and
insist that the original be produced or that the copy be excluded as
inadmissible evidence under the best evidence rule. If the other side
claims, "The original was destroyed, your Honor," then you make your
record by demanding to know details of the circumstances under which
the original was destroyed, since legitimate unavailability of an original
results in the admissibility of a copy under the rule.
In brief, the best evidence rule can be explained this way. If the original
of a document or thing can be produced through the exercise of
reasonable diligence, then only the original is admissible ... and no copy
can be used as a substitute.
If the original has been destroyed or is otherwise no longer available,
even with the exercise of reasonable diligence, then the copy may be
admitted, in spite of the rule. However, the copy is still a copy - and, as
such, it does not carry the same weight of proof as would the original.
Do not fail to make this distinction. If the original is not available, and
the court admits a copy, make it clear on the record that the copy is not
an equivalent of the original.
Especially in this present digital age, any schoolchild with a smattering
of computer savvy can create exacting duplicates of almost anything that
can be replicated on ordinary paper .
Learn more about The Best Evidence Rule in our affordable case-
winning step-by-step lawsuit self-help course.
Don't get caught with your evidentiary pants down!
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