​Admissibility of Evidence - Best evidence rule
 
            The best evidence rule provides that when the terms of a writing are to be proved, the original document must be produced unless the proponent of the evidence can show it to be unavailable for reasons other than his own fault. [1] If the absence of the original can be satisfactorily accounted for secondary evidence will be admissible.[2]
 
                  The Court of Appeals explained the “best evidence” rule and the reason for the rule, observing that the “oft-mentioned and much misunderstood” best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven. At its genesis, the rule was primarily designed to guard against mistakes in copying or transcribing the original writing. Given the technological advancements in copying, in modern day practice, the rule serves mainly to protect against fraud, perjury, and inaccuracies which derive from faulty memory. Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith. The loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original. The more important the document to the resolution of the ultimate issue in the case, the stricter becomes the requirement of the evidentiary foundation establishing loss for the admission of secondary evidence.  In other words, the court should give careful consideration to the possible motivation for the nonproduction of the original in determining whether the foundational proof of loss was sufficient. Once the absence is excused, all competent secondary evidence is generally admissible to prove its contents, provided that its admission does not offend any other exclusionary rule or policy. No categorical limitations are placed on the types of secondary evidence that are admissible. Nonetheless, the proponent of such derivative proof has the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility. For example, when oral testimony is received to establish the contents of an unavailable writing, the proponent of that proof must establish that the witness is able to recount or recite, from personal knowledge, substantially and with reasonable accuracy all of its contents. Once a sufficient foundation for admission is presented, the secondary evidence is subject to an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with the final determination left to the trier of fact.[3]
 
            In applying the “best evidence” rule to x-rays the Court noted that an expanded definition of “writings” is employed in recognition of the fact that evidentiary rules concerning the admissibility of originals should be fashioned with a breadth sufficient to encompass modern techniques for storing and retrieving data.[4]
 
           The best evidence rule applies only where a party seeks to prove the contents of a writing, [5]  recording, and photograph.[6]
 
          The best evidence rule does not apply where the fact to be proved is independent of the writing and the proof is the testimony of a witness with personal knowledge of the fact.[7]  For example, the payment of maintenance or child support may be evidenced by a written receipt. Nevertheless, the payor may testify that he paid the maintenance without producing the receipt or explaining why he does not have it. The payment is an independent event. It is not dependent on the receipt of evidence that it has been made. Thus, in such case, the best evidence rule does not apply.[8]  However, if title to property is in dispute and the deed is not produced, the best evidence rule applies and a foundation will have to be laid for the production of secondary evidence. This is because a transfer of property does not exist independently of the deed. The deed is a legally operative instrument.[9]  
 
          Thus, the best evidence rule applies (1) where the object of proof is a written transaction (a deed, will, written contract, judgment or another dispositive instrument);[10]
 or (2) where, although the object of proof is not a written transaction, the event or matter has been memorialized in a writing (or tape or photograph) and the proponent chooses to prove the event or matter by means of the written description or version. But where the mere existence of a document is to be proved, i.e., “where evidence concerning a document is introduced to prove something other than content”,[11] the best evidence rule is inapplicable.[12]
 
          The best evidence rule does not require the “best” secondary evidence. While a copy of a document would be the preferred secondary evidence of a document, more reliable forms of secondary evidence do not have to be produced if evidence of lesser worth is also available.[13]




     [1]    McCormick on Evidence § 230 (6th Ed.).

     [2]    McCormick on Evidence § 230 (6th Ed.).

     [3]  Schozer v William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644 N.E.2d 1353, 620 N.Y.S.2d 797 (1994).
            In Matter of Robert AA v .Colleen BB., 101 A.D.3d 1396, 956 N.Y.S.2d 642 (3rd Dept., 2012) at the hearing, the mother testified that the father sent her more than 10 text messages over the course of a day in July 2010. The Appellate Division rejected the father's assertion that Family Court erroneously permitted the mother to testify to the contents of the text messages in violation of the best evidence rule. The mother sufficiently established that the messages were unavailable as a result of an innocent mishap and despite her due diligence in attempting to recover them (citing Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644 [1994]).

     [4]  Schozer v William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644 N.E.2d 1353, 620 N.Y.S.2d 797 (1994)

     [5]  Wagman v. Bradshaw, 292 A.D.2d 84, 88–89, 739 N.Y.S.2d 421, 424–25 (2d Dep't 2002) (best evidence rule violated by testimony describing contents of a written report, which was not in evidence, of a magnetic resonance image (MRI),  not in evidence)

     [6]  Schozer v. William Penn Life Ins. Co. of New York, 84 N.Y.2d 639, 620 N.Y.S.2d 797, 644 N.E.2d 1353 (1994) (photographs—X-rays); People v. Graham, 57 A.D.2d 478, 394 N.Y.S.2d 982 (4th Dep't 1977), order aff'd, 44 N.Y.2d 768, 406 N.Y.S.2d 36, 377 N.E.2d 480 (1978) (tape recordings); Ed Guth Realty, Inc. v. Gingold, 34 N.Y.2d 440, 358 N.Y.S.2d 367, 315 N.E.2d 441, 71 A.L.R.3d 224 (1974) (computer printouts).

     [7]  Universal Grain Corp. v. Lamport & Holt Line, 54 N.Y.S.2d 53 (App. Term 1945)

     [8]  Steele v. Lord, 70 N.Y. 280 (1877). See also Grieshaber v. City of Albany, 279 A.D.2d 232, 720 N.Y.S.2d 214 (3d Dep't 2001) (best evidence rule did not require production of  audiotape of a crucial 911 call where the operator testifies as to its content; the conversation exists independently of the recording); People v. Murray, 90 A.D.2d 640, 640, 456 N.Y.S.2d 445, 447 (3d Dep't 1982) (laboratory analyst could testify to test results without producing laboratory reports; records and materials used by the expert merely recorded his personal observations and were not legally operative documents).

     [9]  McCormick on Evidence § 234 (6th Ed.); See Glatter v. Borten, 233 A.D.2d 166, 649 N.Y.S.2d 677 (1st Dep't 1996).

     [10]  In Cullinan v. Horan, 116 A.D. 711, 713, 102 N.Y.S. 132, 134 (2d Dep't 1907), the court noted that a divorce is an event that does not exist independent of a court's written judgment or decree. 
        In In re Spondre, 98 Misc. 524, 527, 162 N.Y.S. 943, 946 (Sur. Ct. 1917), the court held that a Jewish divorce, a “get”, could be proved without producing documentation.

     [11]  Cullinan v. Horan, 116 A.D. 711, 713, 102 N.Y.S. 132, 134 (2d Dep't 1907).

     [12]  Universal Grain Corp. v. Lamport & Holt Line, 54 N.Y.S.2d 53 (App. Term 1945). See also Wolper v. New York Water Service Corp., 276 A.D. 1106, 1107, 96 N.Y.S.2d 647, 649 (2d Dep't 1950) (error to rule that the customer of plaintiffs could not testify as to ownership of bonds or real property without the production of the bonds or deeds. Terms of the bonds or deeds were not in issue.).

     [13]   Schozer v. William Penn Life Ins. Co. of New York, 84 N.Y.2d 639, 645, 620 N.Y.S.2d 797, 800, 644 N.E.2d 1353, 1356 (1994). 

​The material on our website is from  the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  There are numerous questions for the examination and cross-examination of witnesses. 

​Joel R. Brandes Consulting Services, Inc. ​publishes The ​New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at  Amazon,  Barnes & Noble, Goodreads and other online book sellers.  

The New York Matrimonial Trial Handbook  is  available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore. 

Joel R. Brandes Consulting Services, Inc.   
2881 NE 33rd Court (At Dock)
Ft. Lauderdale, Florida 33306.
Telephone (954) 564-9883.
email to:[email protected].

​​Joel R. Brandes Consulting Services, Inc is a Florida corporation  which is owned and operated  by 
​Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. 

​This website is published by ​Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C.  Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of  the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters),  and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.