Trial practice requires familiarity with many rules of evidence. One such rule, often overlooked, is the “best evidence rule.”
The rule itself is easy enough to recite: You need an original if an original is available. But similar to the hearsay rule-with its many exceptions and exclusions-the best evidence rule requires analysis beyond the plain language of the rule itself.
In Minnesota, the rule reads as follows:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Legislative Act.
Minn. R. Evid. 1002 (2018) (emphasis added). Again, the rule itself is straightforward: An original is required (except when it’s not). The exceptions to the rule arise from how the term “original” is defined, Minn. R. Evid. 1001(3), and the fact that a duplicate is also sometime permissible, Minn. R. Evid. 1003.
The Minnesota Court of Appeals discussed some of these exceptions in 2015 when it was deciding whether a district court had erred when admitting a copy (rather than an original) of a video recording:
Under the best-evidence rule, an “original writing, recording, or photograph is required” to prove its contents. Minn. R. Evid. 1002; see State v. Carney, 649 N.W.2d 455, 463 (Minn. 2002). A video or motion picture is considered a “photograph” for purposes of the rule. Minn. R. Evid. 1001(2). “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.'” Minn. R. Evid. 1001(3). The best-evidence rule “simply prohibits the introduction of secondary evidence to establish the contents of a writing where the writing itself is available.” State v. DeGidio, 152 N.W.2d 179, 180 (1967); see Carney, 649 N.W.2d at 463 (holding that the district court did not abuse its discretion in excluding testimony concerning contents of a videotape that was not shown in court, applying the best-evidence rule).
However, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Minn. R. Evid. 1003. “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 rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.” Minn. R. Evid. 1001(4). “Re-recordings of audio tapes or videotapes should be accepted as duplicates when shown to have been made by a technique designed to ensure accurate reproduction of the original.” State v. Brown, 739 N.W.2d 716, 722 (Minn. 2007) (quotation omitted).
State v. Clement, A14-1646, 2015 WL 4393559, at *1-2 (Minn. Ct. App. July 20, 2015).
In other words, the very definition of “original” is broader than the word itself suggests because the rule defines that term as follows:
(3) Original. An “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 negative 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”.
Minn. R. Evid. 1001(3) (2018) (emphasis added). Additionally, a counterpart to the rule allows duplicates to be admitted “unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Minn. R. Evid. 1003 (2018). The rule also broadly defines “duplicate” as follows:
(4) Duplicate. 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.
Minn. R. Evid. 1001(4) (2018) (emphasis added).
The best evidence rule, as it relates to ESI (including ESI involving social media, e-mail and text communications), requires accuracy in reproduction. If the original record stored on a server at Facebook is not presented at trial, a litigant may still present an accurate reproduction. In other words, the best evidence rule does not preclude introduction of ESI at trial but does require that the ESI be an original or a reliable duplicate of the original electronic record.
But the best evidence rule is just one hurdle to the admissibility of electronic evidence.
