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What is the "best evidence rule" in Florida?

Posted by attorney Mark Osherow

The best evidence rule, set forth in Fla. R. Evid.'90.952 and Fed. Rules Evid. 1001, provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Fla. R. Evid. '90.9520-90.958; Fed. Rules Evid. 1002-1008. Under Section 90.953 and Rule 1003, duplicates are admissible on an equivalent basis as originals unless genuine questions are raised as to the authenticity or it would be unfair to do so. Section 90.954 and Rule 1004 provide for the admissibility of other evidence of contents such as when the original is lost or destroyed, when the original is not obtainable, when the original is not in possession of the opponent and collateral matters.

Public records authentication is provided for by section 90.955 and Rule 1005. Under section 90.956 and Rule 1006 voluminous writings, recordings, or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation. Of course, admissibility of a summary depends upon the admissibility of the underlying documents. In order to use a summary, timely written notice is required with proof filed in court. Adverse parties must have sufficient time to investigate and inspect underlying records and summaries.

In Florida, testimonial and other secondary evidence of the document's content is also generally allowed, against the party whom they are offered, without accounting for the non-production of the original Fla. R. Evid. Section 90.957. Section 90.958 and Rule 1008 set forth the situations where the court determines admissibility and where the jury determines factual issues such as the existence of a document, its content, and the content=s accuracy.

The best evidence rule arose during the days when a copy was usually made by a clerk or, worse, a party to the lawsuit. Courts generally assumed that, if the original was not produced, there was a good chance of either a scrivener's error or fraud. Now that "copy" usually means "photocopy" (and now more typically a pdf document) the chance of a copy being in error, as opposed to simply illegible, is slight. In addition, courts are reluctant to require needless effort and delay where there is no dispute about the fairness and adequacy of a photocopy.

Accordingly, both Florida law and the federal rules allow the use of mechanically produced duplicates unless a party has raised a genuine question about the accuracy of the copy or can show that its use would be unfair. Fla. R. Evid. Section 90.951, 90.954; Fed. Rules Evid. 1003. However, there is always a danger of a party questioning a document, so it is important to remember that, unless you have a stipulation to the contrary, or your document fits one of the exceptions listed in the statute, you must be ready to produce originals of any documents involved in your case or to produce evidence of why you cannot.

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