"Best Evidence is the Document"

 Posted By: je froilan m. clerigo
30-Dec-2007

I don't really understand what the objection "best evidence is the document" means. I usually hear it during direct examination when the witness is asked to quote parts of a document she has identified, or is asked what certain statements in the document means. And what's more, when this objection is made, no further explanation is required by the judge when sustaining it. In fact, sometimes the judge himself prods the lawyer to ask another question because his earlier question is improper, "the best evidence being the document which the witness had already identified."

Is the objecting lawyer telling us that the witness cannot explain what the document says because she may vary what the statements in the document literally meant? If so, the objection should be that "it will violate the parol evidence rule" rather than the best evidence rule. The best evidence rule refers to the original of a document: it says that the original must be presented because a mere copy may mislead the court. In other words, the best evidence rule says that the evidence presented to the court must be what it purports to be; a secondary evidence, such as a photocopy, will not do the trick. It's not as reliable simply because it's not the "best evidence." The best evidence rule therefore has nothing to do with the witness reciting what the document says on its face or even interpreting them, as long as his competence to do so is shown beforehand.

Sometimes, this kind of objection is also phrased this way: "objection; the document will speak for itself." By this, perhaps what the lawyer means is that the witness should not be permitted to so testify because whatever she says might just mislead the court since the best evidence of that fact is already in the document. But this is the same dog with a different collar; it's still invoking the parol evidence rule.

In reality, can a document really speak for itself? If it does, what's the need for identification and authentication? The point perhaps is that, if what the witness will read or even interpret is in fact already in the document, then there should be no additional harm in having him say his piece about the document - it's already there anyway.