Best evidence rule Flashcards
(2 cards)
For the best evidence rule, what is the distinction between “Primary evidence” and “secondary evidence”?
“Primary evidence” is that which does not, by its very nature, suggest that better evidence may be available; “secondary evidence” is that which, by its very nature, does suggest that better evidence may be available. The original of a document is primary evidence, a copy secondary evidence, of its contents. The distinction is now mainly of importance in connection with documents, because their contents must, as a general rule, be proved by production of the original, but it used to be of much greater significance on account of the “best evidence” rule which occupied a prominent place in books on the law of evidence in the eighteenth and early nineteenth centuries.
What survives of the best evidence rule?
The modern, surviving aspect of the best evidence rule which is distinct from admissibility, is that courts should act upon the least speculative and most current admissible evidence available.
Thayer said: “the fact that a man does not produce the best evidence in his power must always afford strong ground of suspicion”.
The rule prevents, for example, reliance on oral evidence of the condition of an available electric heater which has not been produced, or fish nets which had not been produced, provided that they remained in a fit condition to be brought to court. The rule does not apply, and secondary evidence is admissible, where it is not reasonably practicable to produce the primary evidence. But even in the jurisdictions where the best evidence rule survives, non-compliance with it does not matter if the non-produced material is not essential to the prosecution case.
