The Best Evidence Rule, originating in 18th century Britain, requires the production of an original document in court unless an exception applies. While still part of US Federal Rules of Evidence, its purpose is obsolete in the digital age, and verifying the authenticity of electronic communication is time-consuming and expensive.
The best rule of proof can be traced back to 18th century Britain and continues to be a part of many legal systems, including those of the United States. The original purpose of the rule was to prevent altered evidence, whether intentionally or accidentally altered, from being admitted in court as evidence. While the Best Evidence Rule remains part of the current US Federal Rules of Evidence, the original purpose has become somewhat obsolete and its practical application is complicated in the electronic age.
Under the Federal Rules of Evidence, Rule 1002 states: “To prove the contents of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by the Act of Congress”. In the United States, this is the codification of the best evidence rule. Quite simply, the rule requires that an original must be produced unless one of the few exceptions to the rule that allow a duplicate to be used applies.
The best evidence rule was originally needed because, before the digital age, copies of documents were made by hand. Clearly, mistakes have commonly been made. Furthermore, the person who made the copy was often the same person who wished to admit the document in court as evidence. Therefore, intentional “mistakes” were often made when the mistake benefited the person making the copy. The legal solution to this problem was to require the production of an original when a party wished to admit a document in court as evidence.
The original justification for the best evidence rule does not exist to the extent that it once did. Most copying is done by a fax machine which cannot make mistakes like a person copying the document by hand would. Even copies of videos, recordings or photos are not subject to the same tampering problems as an 18th century document.
While the purpose of the best evidence rule has become more difficult to justify, applying the rule has also become complicated. With the vast majority of communication now being done through electronic means and the average person regularly using video and sound to record events, determining that a proof is the original has become time consuming and expensive. Verifying that a video or audio recording hasn’t been tampered with can require an expert analysis, which takes up a significant amount of time and money. Emails or text messages are equally difficult to authenticate as genuine, but they make up the vast majority of communication in the digital world.
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