Delaware Trial Handbook § 19:5. BEST EVIDENCE RULE

Under the “best evidence rule,” when a party seeks to prove the contents of a writing or recording43 or photograph,44 the party offering the evidence must  produce the original writing, recording or photograph45 unless otherwise provided by statute or under the rules of evidence.46 The  purpose of the best evidence rule is to ensure that the most accurate evidence practicable is presented in those situations where informed judgment has concluded that precision is essential.47 Secondary evidence is excluded under this rule not because it is necessarily  inferior in probative value, but because it presupposes that direct  primary evidence is being held back.48

Certain events may be proved by non-documentary evidence even though a written or taped record of it was made. For example, payment may be proven without producing the written receipt which was given by testimony of a party to the transaction. Similarly, earnings may be proven without producing the books of account in which such earnings are entered. If, however, a party seeks to prove that documents or records contain certain facts, then such proof generally must be through the admission of the original records.49 Conversely, the best evidence rule does not apply to evidence of the absence of a writing or its contents.50 The best evidence rule also does not apply to prove prior inconsistent statements.51

To ease the burdensomeness of the best evidence rule, a duplicate52 is admissible to the same extent as an original, unless a genuine question is raised as to the authenticity of the original or unless there are circumstances under which it would be unfair to admit the duplicate in lieu of the original.53  For a genuine question of authenticity to exist, a party would need to present facts or testimony sufficient to bring the issue into contention.53.1

Further, the original is not required, and all other evidence of the contents of a writing, recording or photograph is admissible if (1) all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; (2) no original can be obtained by any available judicial process or procedure; (3) at a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) the writing, recording or photograph is not closely related to a controlling issue.54 The original is not required when the relevant issue is the existence of the document, and not its contents.54.1

The decision to admit secondary evidence in the absence of the original is within the discretion of the trial judge. There is no preference in the order of secondary evidence that may be admitted in the absence of the original. For example, a handwritten copy of a document is not preferred over an oral description of its contents.55

The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by a copy, certified as correct or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may then be given.56

The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals or duplicates must be made available for examination or copying or both by other parties at a reasonable time and place. The court may also order that the underlying documents be produced in court.57

Contents of writings, recordings or photographs may also be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the non-production of the original.58

When the admissibility of other evidence of contents of writings, recordings or photographs depends upon the condition of the fulfillment of a condition of fact, the issue of whether such condition has been fulfilled is ordinarily for the trial court to decide. If an issue is raised as to (1) whether the alleged writing, recording or photograph ever existed, (2) whether the evidence is an original, or (3) whether the other evidence of contents is correct, such issue is for the trier of fact to determine.59

43. A “writing” or “recording” consists of letters, words, sounds or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation. D.R.E. 1001(1).

44. “Photographs” include still photographs, x-rays, films, videotapes and motion pictures. D.R.E. 1001(2).

45. The “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negatives or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.” D.R.E. 1001(3).

46. D.R.E. 1002. See also Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994); Smith v. State, 352 A.2d 765, 768 (Del. 1976); Day v. State, 297 A.2d 50, 51 (Del. 1972).

47. Reams v. Division of Motor vehicles, C.A. No. 90A-09-125, slip op. at 4-5, Goldstein, J. (Del. Super. Feb. 28, 1991).

48. De Salvatore v. State, 52 Del. 550, 163 A.2d 244, 250 (Del. 1960).

49. Atkins v. State, 523 A.2d 539, 542 (Del. 1987).

50. Smith v. State, 352 A.2d 765, 768 (Del. 1976).

51. Jenkins v. State, 305 A.2d 610, 616 (Del. 1973).

52. A “duplicate” is a counterpart produced by the same impression as the original or from the same matrix or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording or by chemical reproduction or by other equivalent techniques which accurately reproduce the original. D.R.E. 1001(4).

53. D.R.E. 1003. See also 29 Del. C. § 516(b) (copies of State records are admissible in evidence and have the same force and effect as the originals would have).

53.1. Estate of Osborn ex rel. Osborn v. Kemp, C.A. No. 3171-VCP, slip op. at 15-16, Parsons, V.C. (Del. Ch. Aug. 20, 2009), aff’d, 991 A.2d 1153 (Del. 2010); Graves v. State, ID No. 0411021298, slip op. at 4, Ableman, J. (Del. Super. Feb. 2, 2006), aff’d mem., 905 A.2d 746 (Del. 2006).

54. D.R.E. 1004.

54.1. Pennewell v. State, No. 410, 2002 (Del. Apr. 29, 2003), disposition reported at 882 A.2d 397 (Del. 2003) (TABLE); Day v. State, 297 A.2d 50, 51 (Del. 1972).

55. Rennick v. Northern Maryland Corp., C.A. No. 87A-OC-6, slip op. at 8, Stiftel, J. (Del. Super. Feb. 9, 1989).

56. D.R.E. 1005. See also Duross v. State, 494 A.2d 1265, 1271 (Del. 1985).

57. D.R.E. 1006. See also Gibbs v. State, 479 A.2d 266, 272 (Del. 1984).

58. D.R.E. 1007.

59. D.R.E. 1008.

© 2010  David L. Finger