Best Evidence Rule
Interpretations of the text: In general
Interpretations of the text: Definitions and interpretation of “original”
Interpretations of the text: Definition of “writing”
Interpretations of the text: Definition of “recording”
Interpretations of the text: Definition of “photograph”
As applied to foreign language transcripts
Exceptions: When all originals are lost or destroyed, and not by the proponent acting in bad faith
Copies of public records to prove content
Summaries, charts, and calculations to prove content
In general
• The best evidence rule is codified as Indiana Evidence Rule 1002 . . . .
Lawson v. State, 803 N.E.2d 237, 240 (Ind. Ct. App. 2004), trans. denied
Text of the rule
• An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.
Interpretations of the text: In general
• [The parents] contend that this admission of evidence violated the best evidence rule, which requires the original writing, recording, or photograph to be produced to prove the content of such unless otherwise provided in the rules or by statute.
In re J.V., 875 N.E.2d 395, 401 (Ind. Ct. App. 2007), reh’g denied, trans. denied(citing Evid. R. 1002)
See Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App. 2002), reh’g denied, trans. denied, cert. denied, 538 U.S. 1013 (2003), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n. 9 (Ind. 2007)(“Evidence Rule 1002, the ‘best evidence’ rule, requires an ‘original’ in order to prove ‘the content’ of a writing or recording.”)
Interpretations of the text: Definitions and interpretation of “original”
• An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it.
• For electronically stored information, "original" means any printout or other output readable by sight if it accurately reflects the information.
E.g., Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App. 2002), reh’g denied, trans. denied, cert. denied, 538 U.S. 1013 (2003), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n. 9 (Ind. 2007)(“According to [Detective] Metzger, he saved the [online chat room] conversations with [the defendant] after they were concluded, and the printout document accurately reflected the content of those conversations. Therefore, the printouts could be found to be the ‘best evidence’ of the conversations between [Detective] Metzger and [the defendant], and their admission would not be an abuse of discretion.”)
• An "original" of a photograph includes the negative or a print from it.
Interpretations of the text: Definition of “writing”
• A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
Interpretations of the text: Definition of “recording”
• A “recording” consists of letters, words, numbers, sounds, or their equivalent recorded in any manner.
Interpretations of the text: Definition of “photograph”
• A “photograph” means a photographic image or its equivalent stored in any form.
As applied to photographs
• To the extent that Parents are arguing that the admission of the photo of the camera violated the best evidence rule because the actual camera should have been admitted, they are mistaken because the best evidence rule only requires that the photograph be original and does not require admission of the object, which was the subject of the photograph.
In re J.V., 875 N.E.2d 395, 401 (Ind. Ct. App. 2007), reh’g denied, trans. denied
As applied to labels
• Dean McCormick advocates an analysis of factors by the trial court before concluding whether a chattel with an inscription is under the purview of the best evidence rule:
“[T]he judge shall have discretion to apply the [best evidence] rule to inscribed chattels or not in light of such factors as [1] the need for precise information as to the exact inscription, [2] the ease or difficulty of production, and [3] the simplicity or complexity of the inscription.”
Lawson v. State, 803 N.E.2d 237, 240-41 (Ind. Ct. App. 2004), trans. denied(quoting Charles T. McCormick, McCormick on Evidence § 234 (4th ed.1992))(alteration in the original)
• [In United States v. Duffy, the] court discussed the purposes behind the best evidence rule, including the need for precision in documents such as wills and deeds, the “substantial hazard of inaccuracy” when attempting to copy a writing, and the “special risk of error” in attempting to orally describe the contents of a writing. The Duffy court then found that when an object bearing an inscription exists, the trial court may treat that object as either a writing or a chattel, giving due regard to the reasons behind the rule.
Lawson v. State, 803 N.E.2d 237, 241 (Ind. Ct. App. 2004), trans. denied(quoting and citing United States v. Duffy, 454 F.2d 809, 812 (5th Cir. 1972))
• In our view, the McCormick and Duffy court approaches are appropriate and strike a balance between the need for accuracy and simple common sense.
Lawson v. State, 803 N.E.2d 237, 241 (Ind. Ct. App. 2004), trans. denied
As applied to foreign language transcripts
• The general requirement of Evidence Rule 1002 is that, to prove the content of a recording, the original recording is required. Here, under the reasonable assumption that the jury did not comprehend Spanish, the original recording, being solely in Spanish, would not likely convey to the jury the content of the recorded conversations. Applying the rule to limit the evidence of content to the original Spanish recordings would not serve the purpose of the rule because it could not prove any content to the jury. We thus hold that the admission into evidence of foreign language translation transcripts is not governed by Evidence Rule 1002.
Romo v. State, 941 N.E.2d 504, 508 (Ind. 2011)(emphasis added)
Duplicates
• A duplicate is admissible to the same extent as an original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
• A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
• For information about authentication, please review Authentication.
• [T]his Court held in a pre-Indiana Rules of Evidence case that when addressing the unfairness, we refer primarily to circumstances affecting the trustworthiness of the duplicate for the purpose for which it is offered.
Belcher v. State, 797 N.E.2d 307, 310 (Ind. Ct. App. 2003)(citing Wilson v. State, 348 N.E.2d 90, 95 (Ind. 1976), reh’g denied)
• “Such circumstances might occur where the duplicate is not fully legible or where only a portion of the total original document is offered and the remainder would be useful for cross examination, or might qualify the portion offered, or otherwise be useful to the opposing party.”
Belcher v. State, 797 N.E.2d 307, 310 (Ind. Ct. App. 2003)(quoting Wilson v. State, 348 N.E.2d 90, 95 (Ind. 1976), reh’g denied)
Exceptions: In general
• An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Exceptions: When all originals are lost or destroyed, and not by the proponent acting in bad faith
• Although the original is required under the best evidence rule, an exception exists that allows for the admission of evidence of the contents of a writing, recording, or photograph where the original is lost or destroyed unless the proponent lost or destroyed the original in bad faith.
In re J.V., 875 N.E.2d 395, 401 (Ind. Ct. App. 2007), reh’g denied, trans. denied(citing Evid. R. 1004(1)[recodified without substantive changes at Evid. R. 1004(a)])
See Wise v. State, 26 N.E.3d 137, 143 (Ind. Ct. App. 2015), trans. denied(quoting Evid. R. 1004(a))(“[The defendant’s] argument disregards Rule 1004(a), under which the best evidence rule permits admission into evidence of a duplicate recording when ‘all originals are lost or destroyed, and not by the proponent acting in bad faith.’”)
See also Thomas v. Ind. Dep’t of State Revenue, 675 N.E.2d 362, 365-66 (Ind. T.C. 1997)(citing Evid. R. 1004)(“A court may permit the use of secondary evidence to prove the contents of a writing when the original is lost or has been destroyed, unless the proponent lost or destroyed the document in bad faith.”)
• The proponent of the evidence must demonstrate that the original was lost or destroyed by showing that a diligent but unsuccessful search has been made in the place or places where the original was most likely to be found.
In re J.V., 875 N.E.2d 395, 401 (Ind. Ct. App. 2007), reh’g denied, trans. denied(citing Cua v. Ramos, 433 N.E.2d 745, 753 (Ind. 1982))
Copies of public records to prove content
• The proponent may use a copy to prove the content of an official record or of a document that was recorded or filed in a public office as authorized by law if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
• Evidence Rule 1005 provides an exception to the ‘original writing rule’ for public records certified by the custodian of the records.
Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplementing opinion on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000)(footnote omitted)
• This exception is based on the recognition that the operation of public offices would be seriously disrupted and inconvenienced if the production in court of the original public record was repeatedly required.
Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplementing opinion on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000)(citing Enlow v. State, 303 N.E.2d 658, 661 (Ind. 1973))
• For information about evidence that is self-authenticating pursuant to Indiana Evidence Rule 902, please review Self-Authenticating Evidence.
Summaries, charts, and calculations to prove content
• The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time or place. The court may order the proponent to produce them in court.
See Shively v. Shively, 680 N.E.2d 877, 881 (Ind. Ct. App. 1997)(“Under Evid. R. 1006, the contents of voluminous writings or other recordings which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation as long as the underlying documents are made available to the other party.”)
• [W]e have previously held that a summary may be admitted where the records or reports used to prepare the summary are admitted into evidence, are in court, or are available to the opposite party.
Shively v. Shively, 680 N.E.2d 877, 881 (Ind. Ct. App. 1997)(citing Brane v. Roth, 590 N.E.2d 587, 591 (Ind. Ct. App. 1992), reh’g denied, trans. denied)
Testimony or statement of a party to prove content
• The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
Functions of the court and jury
• Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines in accordance with Rule 104(b) any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.