best evidence rule

This maxim, once central to the preparation of evidence was a fundamental principle (a maxim) that “the best evidence must be given of which the nature of the case permits” must be presented to the court, has now been relaxed to the point of extinction. Courts now take a more flexible approach to receiving evidence, by assessing weight and reliabilty of evidence sought to be admitted by the parties, to the extent that the best evidence rule no longer applies in English Courts.

The best evidence rule was generally understood to be a reference to the use of hearsay evidence, secondary evidence of a signed document (say, of an attested document by someone other than the attesting witness), or circumstantial evidence where direct evidence could have been obtained. For instance, a person attesting a document should have made a statement to put the document into evidence, rather than producing evidence of a handwriting expert that the signature is was of the person who could have given evidence.

The best evidence of a fact in most instances not need to be produced in English Courts. Where economy of cost or convenience dictates, the best evidence of the fact alleged should still be produced to the court, as the court will still assess for weight and reliability. The court may decide not to give the evidence weight, refuse to admit the document into evidence, or give the evidence such weight as it thinks fit in all the circumstances of the particular case. The risk of not producing the best evidence is that may materially affect the prospects of succeeding at the trial.  Certainly, where a party is in possession of an original document, it should be produced to avoid exciting suspicion on the part of opposing litigants.

Usage: The best evidence rule is a maxim which no longer applies in English Courts.

Related Words: hearsay rule; real evidence; secondary evidence; primary evidence; litigation; evidential burden; burden of proof; onus of proof; standard of proof; documentary evidence; admissions; judicial notice; presumptions.