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The Best Evidence Rule ("BER") is always tested on the MBE. Usually, only one question on the MBE is focused on this issue. Though it is not a high value subject area like negligence, which typically has 4 or more questions, there is no good reason to miss a question on the Best Evidence Rule if you know the basics and can apply them.
In evidence law, a witness' testimony through personal knowledge is typically highest on the totem pole of admissibility. However, when information within a document is disputed by the parties, such as the quantity term for goods in a contract, the rule requires production of the the original writing as the "best evidence" to resolve the dispute. When a matter is disputed by the parties, courts also refer to the matter as being "at issue."
For these reason, the BER is also referred to as the "original document rule." While this sounds straight-forward, it is only through examples that illustrate when the rule applies and when it does not apply that truly solidify the concept.
The BER has a fairly narrow application. The rule almost exclusively applies to writings, such as court judgments, contracts, and deeds, but sometimes also applies to photographs and recordings. When there is independent proof of an event that can also be proved by a writing, the BER does not apply. Additionally, the power of the BER is somewhat undermined by the fact that courts in many cases allow a duplicate of the original document when the original is destroyed or not available.
Example 1: BER does not apply
In a murder case, you are on the witness stand and are asked to identify a photograph entered into evidence as a correct representation of a street corner in your neighborhood.
The BER does not apply. The contents of the photograph are not disputed, or "at issue."
Example 2: BER does apply
The same fact pattern, with additional information. The photograph is not available. The defense asks you if you recall seeing the photograph, and if you recall seeing a man other than the defendant in the photograph holding a jeweled dagger. The jeweled dagger is separately entered into evidence and is identified as the murder weapon.
The prosecution should immediately raise an objection based on the BER. This is because the "contents of the writing," which is the identity of the person holding the murder weapon in the photograph, are at issue. The contents of the photograph have independent probative value beyond the photograph itself. The judge should sustain the objection and demand that the defense produce the photograph.
Example 3: BER does not apply
The same fact pattern as Example 2, but the witness claims to have seen a man other than the defendant walking around town holding the jeweled dagger, and testifies to that effect.
Here, the witness would be testifying from personal knowledge.
Example 4: BER does not apply
You are on the witness stand, and are asked if Smith was married to Jones on a certain date. You attended their formal wedding ceremony, as did two other witnesses. Even though proof of the marriage is recorded in a written document, a marriage license, testimony provided under oath by witnesses through personal knowledge provides independent proof of the same event. As a result, the BER does not apply.
Example 5: BER does apply
The prosecution calls as a witness a technician that viewed a videotape of a convenience store robbery, and asks the technician to describe how the robbery was carried out.
The BER applies. The prosecution is trying to prove facts of an event by offering testimony that describes video of the event, instead of offering the video itself. The technician lacks personal knowledge of the event, as the technician witnessed a representation of the event, the video, and not the event itself as it occurred.
Example 5: BER does apply
The prosecution calls as a
witness an expert on automated tollbooth equipment. The witness testifies
that the defendant crossed the US border into Mexico based on the witness' analysis of data logs from the automated tollbooth equipment installed at the border crossing. The defendant has already been charged with possession of narcotics. At issue is whether the defendant crossed the US border into Mexico.
The BER applies. Note that the witness never actually saw the defendant cross the US
border into Mexico, the witness inferred this based on data in a log file. The witness lacks personal knowledge
of the event. The prosecution must produce the data logs themselves.
The prosecution can then ask the witness to comment on the content of the data logs to support the argument that the defendant crossed the US border into Mexico. The defense can then rebut these statements with analyses of the data logs of their own expert witnesses, provide evidence showing that the automated tollbooth equipment was not functioning reliably at the time of the alleged border crossing, etc.
An approach to addressing BER questions
1) Determine if a document, photograph, or other writing is mentioned in the fact pattern
2) Ask the question "are the *contents* of the writing at issue?
If both (1) and (2) are true, the BER holds.
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