GREGORY CHANDLER: THE BEST--AND NOTHING BUT THE BEST--EVIDENCE

BY GREGORY CHANDLER, ESQ.


While teaching a seminar on the rules of evidence, I became aware of the fact that many attorneys do not understand the concept known as the Best Evidence Rule.  In the Federal Rules of Evidence, the Best Evidence Rule is expressed in Federal Rule of Evidence 1002, Requirement of the Original.  Most states have a rule of evidence similar to Federal Rule of Evidence 1002. 

Federal Rule of Evidence 1002 (Rule 1002) reads:

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

The Best Evidence Rule requires the production of an original in order to prove the contents of a writing, recording, or photograph, unless an exception is provided in another Rule.  The traditional rationale for the Best Evidence Rule--that accuracy is promoted by production of the original, because the process of copying creates risk of fraud, mistake, or error--has been reduced somewhat by technological advances with respect to copying of writings and recordings.  The Federal Rules take account of these developments by establishing broad exceptions to Rule 1002.  Rule 1002 must be read together with the exceptions provided in Rules 1003 and 1004.  The only legitimate concern remaining is where the proponent seeks to prove the content of a writing or recording by way of oral testimony or handwritten replication, i. e., where there is no duplicate of the final document. 

The one difficult concept that arises in connection with Rule 1002 is the notion of proving the contents of a writing, recording, or photograph.  If the contents are not sought to be proved, the Best Evidence Rule is inapplicable, and the proponent can prove the fact in any otherwise permissible way. The fact that a writing is made to describe or record an event or a condition does not prevent testimony by knowledgeable witnesses as to the same event or condition, if it is the event or condition to be proved and not the contents of the document itself. 

One familiar example relates to the question whether one individual paid another individual a certain sum of money at a specified time.  The first individual may have given the second individual a written receipt, but that does not prevent oral testimony concerning the alleged payment.  The proponent is trying to prove whether or not a payment is made, not the content of any agreement. 

However, should the first individual choose to prove the fact of payment by using the receipt, Rule 1002 requires that the original or a duplicate of the receipt be introduced, or its absence explained, because in that case the content of the receipt (i. e., the amount, date, signature, etc.) is the point to be proven.  The same can be said of the use of most photographs, a point made by the Advisory Committee of the Federal Rules of Evidence.  Ordinarily, a witness takes the stand and states that a photograph represents the scene as she or he saw it.  The contents of the photograph are not then in issue; the scene is in dispute.  Therefore, Rule 1002 seldom applies to ordinary photographs.  However, in an obscenity prosecution or copyright case, the contents might be in dispute.  The contents of a photograph would also be in dispute if the proponent merely took a photograph of documents and offered the photograph to prove the contents of the documents. 

The most common example of non-applicability of the Best Evidence Rule in criminal cases is police officer testimony as to the contents of a confession.  Police officers who heard a defendant confess may testify to what they heard even if there is a recording of the confession and a transcript of that recording.  Only when the recording or transcript is actually offered, as proof of the content therein, is the Best Evidence Rule triggered. 

One example of an application of the Best Evidence Rule arose in United States v. Bennett, 363 F. 3d 947 (9th Cir. 2004).  The United States Coast Guard found substantial amounts of marijuana on the defendant's boat, and the major contested issue was whether defendant was importing the marijuana from Mexico.  The federal prosecutors did not have eyewitness testimony that the boat crossed into United States waters from Mexican waters.  The federal prosecutors relied at trial chiefly on the testimony of a customs officer that he found a global positioning system (GPS) on the defendant's boat and that the GPS revealed that the boat had traveled from Mexican waters to the bay of San Diego, California. 

A GPS device uses global positioning satellites to track and record the location of the device, and thus the location of any object to which it is attached.  The GPS device in question came with the capabilities to graph the boat's journey the day of the search.  The customs officer testified at trial that the GPS mapped the defendant's journey from Mexican territorial waters and then north to San Diego Bay.  The customs officer admitted on cross-examination that he had not taken possession of the GPS device itself nor had he obtained any printout record of the date contained in it.  Rather, he simply used the GPS device and viewed the graphic display, which indicated where the boat had been.  The court found the testimony about the GPS information to be a best evidence violation for three reasons.  First, the GPS display the customs officer saw was a writing or recording.  Second, the customs officer never actually observed the defendant's boat travel the path depicted by the GPS.  Third, the customs officer did not observe anyone entering way points into the machine.  Thus, the witness' testimony concerned the content of the GPS to prove the defendant's travels.  The federal prosecutors did not produce the GPS itself, in which the GPS could be employed in court; nor did it produce a printout of the GPS data.  Either of these sources would have been the best evidence of the boat's travels; as a result, testimony did not satisfy the Best Evidence Rule.  Finally, the government provided no excuse for relying on the witness' testimony instead of the GPS or a printout. 


GREGORY CHANDLER, Attorney at Law