The Best Evidence Rule: Just Don’t. Don’t even bother.

If you find yourself thinking about objecting to the admission of evidence at trial because it is not “the best evidence,” close your eyes, take three slow long “cleansing” breaths (in for count to 4, hold for 2, out on a count of 6), and think again.

If you find yourself appealing a bad result at trial based on a court’s denial of your “best evidence” objection, be prepared to lose your appeal (or at least that part of it).

Some people seem to think that you must offer “the best evidence” at trial or your evidence will be excluded. “Best evidence” is jargon for “the original document,” or “the original evidence.”

At the most superficial level, the rule is obviously straightforward and sensible.

Scratch beneath the micro-thin surface, however, and invoking the rule is silly in the vast majority of cases. If ABC Company and XYZ Company have a contract dispute, surely a photocopy of the signed contract serves as well as the original contract as evidence, right? In fact, court systems, like all bureaucracies, are imperfect. Things get lost. It is probably for the best that exhibits at trial be copies, not originals.

So we have “the best evidence rule” in the rules of evidence (“the original is required“) and, as rules and laws sometimes do, the same text contains the seeds of its own destruction (“except as otherwise provided in these rules or by Legislative Act”). And then we have Minn. Stat. § 600.135 which, roughly, says that copies are normally as good as originals.

The only exception, of course, is in cases where there are allegations of forgery. In my civil litigation experience (anecdotal to be sure), the number of forgery claims far exceeds the number of forgeries. It is surprising how often “I don’t remember signing this” turns into “I never signed this.”

In the linked unpublished Minnesota Court of Appeals decision from last week, the defendant argued the “best evidence rule” and argued that the case might have involved forgery. The Court of Appeals correctly noted that the defendant did nothing to pursue this theory until right before trial, suggesting that the forgery claim was a red herring rather than a genuine defense.

Excel knew the exact location of the original warranty and had well over a year to request that Buckingham produce it. Even though Excel claims that the true original warranty was the ‘critical document’ to their defense, Excel consciously chose not to specifically request that document, instead relying on a belief that Buckingham had a duty to produce the true original, a belief based on an erroneous understanding of the rules of evidence.