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Best Evidence Rule Exceptions Under FRE 1004

These flashcards cover the exceptions to the Best Evidence Rule under FRE 1004, a frequently tested topic on the Multistate Bar Exam. The Best Evidence Rule (FRE 1002) requires an original document to prove its content, but FRE 1004 carves out four situations where secondary evidence — copies, summaries, or oral testimony — is admissible instead. Students who skip the exceptions often miss MBE questions where the original is unavailable, lost, or held by an adversary.

Interactive Deck

5 Cards
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What is the Best Evidence Rule under FRE 1002?

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Best Evidence Rule (FRE 1002): To prove the content of a writing, recording, or photograph, the original must be produced unless an exception applies. The rule only triggers when a party seeks to prove what a document says — not merely that a fact exists which is also documented somewhere.

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What are the four FRE 1004 exceptions to the Best Evidence Rule?

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  • Original lost or destroyed (unless by proponent in bad faith)
  • Original not obtainable by judicial process or subpoena
  • Original in opponent's possession and opponent had notice but did not produce it
  • Collateral matters — original not closely related to a controlling issue
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If an original is destroyed, can secondary evidence be admitted?

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Yes, under FRE 1004(a) — unless the proponent destroyed or lost the original in bad faith. Good-faith destruction (e.g., routine document retention policy) permits secondary evidence such as a copy or witness recollection to prove the document's contents.

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When does the collateral matters exception apply under FRE 1004(d)?

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When does the Best Evidence Rule apply vs. when does it not?

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Frequently Asked Questions

What is the difference between the Best Evidence Rule and the hearsay rule?

The Best Evidence Rule (FRE 1002) controls the form of evidence used to prove a document's contents — it requires the original unless an exception applies. The hearsay rule (FRE 802) controls whether out-of-court statements are admissible at all. They are independent rules; a document may clear both or be barred by either.

Does FRE 1004 allow any copy to substitute for the original?

Not automatically. FRE 1004 permits other evidence only when one of the four exceptions applies. Additionally, under FRE 1003, a duplicate (mechanically reproduced copy) is admissible to the same extent as the original unless a genuine question about authenticity exists or admission would be unfair.

What if the original is in the opposing party's possession?

Under FRE 1004(c), if the original is in the opponent's possession and that party had notice (e.g., via subpoena or discovery request) that the proponent would need it but failed to produce it, the proponent may use secondary evidence of the document's contents.

How is 'original' defined under the Federal Rules of Evidence?

Under FRE 1001(d), an original is the writing or recording itself, or any counterpart intended to have the same effect. For photographs, the original includes any print from the same negative. For electronically stored information, any printout accurately reflecting the data qualifies as an original.

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