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The Best Evidence Rule, (found under Rules 1001-1006) contrary to its name, does not require that a party produce the best evidence. Rather, this rule deals with copies of writings, recordings, or photographs and the actual content within them. For example, assume John read a note that said “I am happy” and he wanted to testify to that statement within the note (assuming obviously no other evidentiary rules apply). If the note is gone, then the best evidence of what the note said is also gone. John has no independent knowledge of the contents of the note. But what if there is a copy of the note and it is not the original? Duplicates are allowed under the rule if certain conditions are met. However, South Carolina District Court Judge Joseph Anderson has given a concise and informative view on the Best Evidence Rule in his recent book Effective Courtroom Advocacy[1]:
A simple memory device for keeping the Best Evidence Rule straight is to recall that the Rule had its heyday back in a time where there were no photocopying machines or carbon paper. If someone wanted a second copy of a contract or a real estate deed, for example, that person had to manually write out the copy, thereby giving rise to the possibility that errors could be made. Modern technology has thus made the Best Evidence Rule practically obsolete.
· State v. Gulledge, 326 S.C. 220 (1997) The best evidence rule will not necessarily be violated by using summaries, as long as the supporting documents are made available.
· State v. NV Sumatra Tobacco Trading, Co., 379 S.C. 81 (2008) A duplicate is admissible as same as the original if conditions are met.
· State v. Mitchell, 399 S.C. 410 (Ct. App. 2012) Trial court properly admitted photographs from a deer camera. The Court of Appeals concluded that based on the testimony the photos were originals under SCRE 1001(3) and thus 1003 was not applicable.
· Sample v. Gulf Ref. Co., 183 S.C. 399 (1937) “The original of a document is, of course, the best evidence as to its contents, and before the receipt of secondary evidence can be required, it is necessary for the party offering the evidence to make certain preliminary proof to establish the necessity and propriety of the receipt of the secondary evidence in place of the original document; and while the sufficiency of this preliminary proof does not rest in the uncontrolled discretion of the trial judge, as statements in some of the cases seem to imply, yet at least some if not a large measure of discretion in this respect necessarily is vested in the trial judge.”
· Turner v. Med. Univ. of S.C., 430 S.C. 569 (Ct. App. 2020) The best evidence rule does not apply to testimony that is not used to describe the contents of a writing or recording. “Turner argues the Blank Mayday Record and Ms. Scarbrough's testimony were used to describe the contents of Mikell's Mayday Record. He avers this violated the best evidence rule because Mikell's actual Mayday record should have been used. Because the Blank Mayday Record and Ms. Scarborough's testimony were used to show the type of information ordinarily contained in any Mayday record, not to indicate what was specifically included in Mikell's Mayday Record, we find the best evidence rule does not apply.”
[1] “The Best Evidence Rule.” Effective Courtroom Advocacy, by Joseph F. Anderson, South Carolina Bar, Continuing Legal Education Division, 2020, pp. 136–137. For a review of his book: https://www.everydayevidence.org/post/resolve-to-be-a-complete-lawyer-a-review-of-judge-joe-anderson-s-effective-courtroom-advocacy