Writings, recordings, and photographs - Requirement of origi...

Learning Outcomes

This article explains the requirement of original for writings, recordings, and photographs as tested on the MBE, including:

• How to recognize when a question is actually about proving the contents of a writing, recording, or photograph so that the best evidence rule is triggered.
• When an original must be produced, when a duplicate is sufficient, and how to analyze authenticity or unfairness objections to copies on exam fact patterns.
• The precise definitions of “writing,” “recording,” “photograph,” “original,” “duplicate,” and “secondary evidence,” and how those definitions control what evidence is admissible.
• The major exceptions that permit secondary evidence—lost or destroyed originals, unobtainable documents, opponent-controlled originals, and collateral writings—and how to state the required foundation.
• The special treatment of voluminous records and summaries, including what must be shown to use charts, compilations, or excerpts in lieu of the underlying documents.
• How courts handle public records, certified copies, and digital evidence such as emails, texts, screenshots, and video stills under the requirement of original.
• Common MBE traps, such as confusing best evidence with hearsay or authentication, and systematic steps for selecting the correct answer choice under time pressure.

MBE Syllabus

For the MBE, you are required to understand the rules governing the admissibility of writings, recordings, and photographs, with a focus on the following syllabus points:

• The best evidence rule and its application to writings, recordings, and photographs
• When the original is required and when duplicates or secondary evidence are allowed
• Exceptions to the requirement of original, including lost or destroyed originals and collateral writings
• Definitions of “writing,” “recording,” “photograph,” “original,” “duplicate,” and “secondary evidence”
• Voluminous records and the admissibility of summaries
• Common pitfalls and exceptions tested on the MBE

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely to trigger the best evidence rule?
   1. A witness testifies from memory about a contract's terms.
   2. A party seeks to prove the contents of a contract by introducing a photocopy.
   3. A party testifies about the effect of a contract without mentioning its contents.
   4. A party introduces a summary of a contract without explanation.
2. When is a duplicate admissible in place of an original under the best evidence rule?
   1. Only if the original is lost and the loss is explained.
   2. Always, unless there is a genuine question about the original's authenticity or it would be unfair.
   3. Never; only the original is admissible.
   4. Only if both parties agree.
3. Which situation is most likely to allow secondary evidence of a writing's contents?
   1. The original was destroyed in bad faith by the proponent.
   2. The original is lost despite diligent search.
   3. The original is in the courthouse.
   4. The original is in the proponent's possession.

Introduction

The “requirement of original,” commonly called the best evidence rule, is a recurring MBE topic in Evidence. It governs how a party proves the contents of a writing, recording, or photograph. The modern rule is far less rigid than the name suggests: a party usually may rely on duplicates, and secondary evidence is often allowed once a proper basis is established.

Key Term: Best Evidence Rule
The rule that, when a party seeks to prove the contents of a writing, recording, or photograph, the original (or a permissible substitute such as a duplicate) must be used, unless a recognized exception applies.

Two ideas organize almost every exam question in this area:

• Is the party actually trying to prove the contents of a writing, recording, or photograph?
• If so, has the party produced an original, a duplicate, or valid secondary evidence under an exception?

If the answer to the first question is “no,” the best evidence rule does not apply, and any objection based on it should be overruled.

Scope: Writings, Recordings, and Photographs

The rule applies only to “writings,” “recordings,” and “photographs” in the evidence sense.

Key Term: Writing
Any letters, words, numbers, or their equivalent recorded in any form, including paper documents, emails, text messages, contracts, account ledgers, and computer files.

Key Term: Recording
Any form of audio or video preservation of sounds, images, or both, including voicemail, surveillance video, phone call recordings, and body-cam footage.

Key Term: Photograph
Any photographic image or its equivalent, including traditional photos, digital images, screenshots, X-rays, and MRI images.

The rule does not apply to physical objects (e.g., the actual gun), only to recorded information. Nor does it apply simply because a fact happens to be mentioned in a writing. The rule is triggered only when the party is using the writing, recording, or photograph to prove what it says or depicts.

When the Best Evidence Rule Applies: “Proving Contents”

The key trigger is whether the party is proving the contents of a writing, recording, or photograph.

Typical situations where the best evidence rule applies:

• The terms of a written contract, deed, or will are in dispute and must be proved.
• The precise wording of a libelous letter, email, or text message is at issue.
• A party seeks to prove what was said in a recorded conversation or shown on a video.
• A fact (like a serial number, VIN, or account balance) is known to a witness only because the witness read it from a document.

Situations where it does not apply:

• A witness testifies from personal knowledge of an event, even if the event was later written down, recorded, or photographed.
• A party seeks to prove the mere existence or execution of a writing (e.g., that a contract was signed) rather than its contents.
• A writing is mentioned only incidentally; the fact can be proved without reference to its precise contents.

Worked Example 1.1

A witness testifies that she saw a car accident and recalls the license plate number. The plaintiff's lawyer asks her to state the plate number from memory. The defense objects, arguing that the original police report is required.

Answer:
The objection should be overruled. The witness is testifying from personal knowledge, not from the police report. The best evidence rule does not apply because the plaintiff is not trying to prove what the report says; she is trying to prove what the witness saw.

“Original” and “Duplicate”: What Counts

The rule focuses on “originals” and “duplicates” broadly defined.

Key Term: Original
The writing, recording, or photograph itself, or any counterpart intended by the person who made it to have the same effect. For electronically stored information, any printout or other output readable by sight that accurately reflects the data is treated as an original.

Key Term: Duplicate
A counterpart produced by mechanical, photographic, chemical, electronic, or other equivalent process that accurately reproduces the original, such as a photocopy, scan, printout, or digital copy.

Handwritten or manually retyped copies are not duplicates under this definition; they are secondary evidence.

Important exam points about originals:

• For a multi-page document, each page is typically part of the original.
• For digital evidence, a printed email or PDF copy that accurately reflects the data is an “original.”
• For photos, the negative and any print made from it are treated as originals; high-quality digital copies are usually treated as duplicates.

Duplicates Are Usually Fine

Under the Federal Rules, a duplicate is normally just as good as the original.

A duplicate is admissible to the same extent as the original unless:

• There is a genuine question about the original's authenticity, or
• It would be unfair to admit the duplicate (for example, the duplicate is incomplete, blurry, or selectively edited).

This reflects the modern reality: accurate copies are usually reliable, and requiring the single physical “original” would be impractical.

Worked Example 1.2

A party seeks to prove the terms of a written contract by offering a photocopy. The opposing party claims only the original is admissible.

Answer:
The photocopy is admissible as a duplicate. Unless the opponent raises a genuine question about the original's authenticity (e.g., alleging forgery) or shows unfairness (e.g., the copy omits a page), the judge should admit the photocopy under the best evidence rule.

Secondary Evidence: When You Can Use Testimony or Handwritten Copies

If the original (or a duplicate) is not available, a party may use secondary evidence—such as testimony about the contents, a handwritten copy, or notes—only if one of the recognized excuses applies.

Key Term: Secondary Evidence
Evidence of the contents of a writing, recording, or photograph other than an original or duplicate, such as oral testimony describing its contents or a manually prepared copy.

Courts will allow secondary evidence of contents when the proponent shows, by a preponderance of the evidence, one of the following:

1. Original lost or destroyed – not in bad faith by the proponent.
2. Original cannot be obtained – it is outside the court’s subpoena power, or the custodian cannot be compelled to produce it with reasonable effort.
3. Original in opponent’s control – the opponent had notice that the contents would be a subject of proof and fails to produce it.
4. Collateral matter – the writing is not closely related to a controlling issue.

If the proponent deliberately destroyed the original to prevent its use in litigation, secondary evidence is not permitted.

When the Original Is Required

Putting this together:

The original (or a duplicate) is required when:

• The contents of a writing, recording, or photograph are being proved, and
• The original has not been shown to be unavailable under a valid excuse.

Examples:

• To prove exactly what a contract says about an interest rate, you must produce the original contract or a duplicate.
• To prove the exact language of defamatory words in a letter, the letter or a duplicate is required.
• To prove what was seen on a surveillance video, the video itself (or a faithful copy) should be produced.

If the original is missing, the proponent must establish one of the recognized excuses before offering testimony or other secondary evidence of its contents.

When the Rule Does Not Apply

The best evidence rule does not apply when:

• A witness testifies from personal knowledge rather than from the writing or recording.
• The writing is used only to refresh recollection; the witness then testifies from present memory.
• The writing is not closely related to a controlling issue; its contents are merely collateral.
• The writing is not being used to prove its contents (e.g., to prove that a document exists, not what it says).

Worked Example 1.3

A party wants to introduce a summary of hundreds of invoices to prove the total amount billed. The original invoices are available for inspection by the other side.

Answer:
The summary is admissible. When the originals are voluminous and cannot be conveniently examined in court, their contents may be proved with a summary, chart, or calculation, as long as the originals or duplicates are available for inspection by the other party.

Key Term: Voluminous Writings
Numerous writings, recordings, or photographs that cannot be conveniently examined in court, so their contents may be presented in summary form if the originals are available for inspection.

Key Term: Summary Evidence
A chart, calculation, or other summary offered to prove the contents of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.

This is the specific “voluminous records” exception; it is conceptually part of the best evidence framework but is treated in practice as a separate rule (FRE 1006).

Proving Contents of Public Records

On the exam, public records often appear in best evidence questions.

• The contents of an official record (e.g., a filed deed, judgment, or birth certificate) may be proved by an original or a certified copy.
• A certified copy is treated as an original for best evidence purposes.

If the record is voluminous (such as many years of tax records), a summary may be used under the voluminous records rule.

Collateral Writings

Key Term: Collateral Matter
A matter that is not closely related to a controlling issue in the case; the precise contents of a writing are not important enough to justify production of the original.

If a writing is collateral, the court may allow testimony about its contents without requiring the original, duplicates, or any preliminary showing for secondary evidence. Example: a witness casually mentions what was written on a note whose contents are not central to any claim or defense.

Authentication vs. Best Evidence

The best evidence rule assumes the writing offered is properly authenticated. Authentication is a separate requirement: showing that the writing is what it is claimed to be.

Common pitfalls:

• Objecting under the best evidence rule when the real issue is authentication (e.g., questioning whether a signature is genuine).
• Forgetting that a duplicate is usually sufficient once authentication is established.

The judge decides preliminary questions about loss, destruction, or authenticity for purposes of applying the best evidence rule. The jury then evaluates the weight and credibility of the evidence.

Digital Images, Screenshots, and Video

Modern exam questions often use digital evidence:

• A printed email or text message, if shown to accurately reflect the data, is an original.
• A screenshot of a social media post is typically a duplicate; it is admissible unless authenticity or fairness is in serious doubt.
• A still photograph printed from a video is generally a duplicate of the video’s content; if the original video file was routinely overwritten, the photo can be admitted as secondary evidence once that fact is established.

Worked Example 1.4

A plaintiff, injured in a collision, offers a color photograph of himself made from a videotape taken by a news crew at the scene. The station routinely reused tapes, and the footage of the plaintiff was erased. The defendant objects, arguing that the original videotape is required.

Answer:
The photograph is admissible. The original recording (the videotape) no longer exists because it was routinely reused without bad faith. The photo is either a duplicate or secondary evidence of the tape’s contents. Because the original is unavailable through no fault of the proponent, secondary evidence of its contents is permitted.

Worked Example 1.5

In a fraud case, the plaintiff alleges the defendant promised in writing: “This investment is risk-free.” At trial, the plaintiff testifies, “The letter said the investment was risk-free,” without offering the letter itself. The defendant objects under the best evidence rule.

Answer:
The objection should be sustained. The plaintiff is attempting to prove the precise contents of the letter, which are central to the fraud claim. The best evidence rule requires the original letter or a duplicate, unless the plaintiff can show a valid excuse for not producing it.

Worked Example 1.6

A witness testifies that she saw a note on the defendant’s desk that appeared to be a to-do list. The prosecution asks, “What did the note say?” The defense objects under the best evidence rule. The to-do list is not otherwise important to the case.

Answer:
The objection should be overruled. The note is collateral to any controlling issue; the precise contents are not significant. The judge may allow testimony about the contents without requiring the original.

Secondary Evidence and Bad Faith

If the original was destroyed in bad faith by the proponent (for example, shredded shortly before litigation to conceal its contents), the proponent may not introduce secondary evidence of its contents. This is a strict sanction and is a classic MBE test point.

By contrast, routine destruction (e.g., business practice of overwriting videos after 30 days) is not bad faith. In that case, secondary evidence is allowed as long as the destruction was not aimed at gaining a litigation advantage.

Opponent-Controlled Originals

If the original is in the opponent’s control, the best evidence rule does not require impossible feats.

• If the opponent is given notice that the contents of a particular document will be at issue and then fails to produce it, the proponent may prove its contents with secondary evidence without further excuse.
• The basic rationale is fairness: a party should not benefit by refusing to produce a document within its control.

Using Writings to Refresh Recollection

When a writing is used to refresh a witness’s memory (present recollection refreshed), the best evidence rule does not apply. The writing is not being offered to prove its own contents; it is just a stimulus to help the witness remember.

If the witness still cannot remember, the proponent may try to introduce the writing under the recorded recollection exception. At that point, the best evidence rule applies in the usual way, but the rule is satisfied because the writing itself (or a duplicate) is being read into evidence.

Exam Warning

The best evidence rule is most often tested when a party tries to prove the precise words or images of a document, recording, or photograph using testimony alone. Ask:

• Is the party proving contents?
• Has an original or duplicate been offered?
• If not, has a proper basis for secondary evidence been laid?

Revision Tip

When a writing, recording, or photograph is central to the dispute, always ask:
“Is this being offered to prove what it says or shows?”
If yes, think in terms of originals, duplicates, and valid excuses for using secondary evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• The best evidence rule requires proof of contents with an original or duplicate when a party seeks to prove the contents of a writing, recording, or photograph.
• The rule applies only when contents are at issue; it does not limit testimony based on personal knowledge of events.
• “Original” includes the item itself and, for electronic data, any accurate printout; “duplicate” includes accurate copies produced by mechanical or electronic means.
• Duplicates are admissible unless there is a genuine question about the original’s authenticity or it would be unfair to admit the duplicate.
• Secondary evidence (testimony, handwritten copies) is admissible only if the original is lost or destroyed without bad faith, unobtainable, in the opponent’s control after notice, or collateral to a controlling issue.
• Voluminous writings, recordings, or photographs may be proved by summaries if the originals or duplicates are available for inspection.
• Certified copies of public records satisfy the requirement of original.
• The rule does not apply when a writing is used solely to refresh recollection or when the party proves facts independently of the writing.
• Bad-faith destruction of an original bars the proponent from using secondary evidence of its contents.
• Many exam questions misdirect you with “best evidence” objections where the real issues are authentication, hearsay, or simple relevance.

Key Terms and Concepts

• Best Evidence Rule
• Writing
• Recording
• Photograph
• Original
• Duplicate
• Secondary Evidence
• Voluminous Writings
• Summary Evidence
• Collateral Matter