More on Best Evidence

 Posted By: je froilan m. clerigo

 Sometimes we hear the objection "best evidence is the document" during cross-examination. Is this really proper?

One time I was watching a lawyer who was cross-examining a witness, apparently focusing on the witness' affidavit that was submitted to the prosecutor during the preliminary investigation. The opposing lawyer raised this objection and the judge "sustained" him.

I was thinking to myself, isn't the cross-examiner entitled to ask questions on the affidavit because, one, it's an admission which can be used against the witness; and two, it wasn't altogether "very nice" of the prosecution to have the witness authenticate an affidavit then object to being cross-examined about it?

More basic, the objection may not be applicable: "best evidence rule" refers to the original of the document, which must be presented because the photocopy (or any other reproduction) has the potential of misleading the court and the other lawyer. Perhaps, what is being raised as an objection is the "parol evidence rule"; but this is likewise not applicable because one, the document is an affidavit, not a contract. Second, it was the witness who authored the affidavit, and the defense is not a party to it. And finally, I don't think that the objection "best evidence" or "parol evidence" is available at all as in a cross-examination because the cross-examiner is precisely not introducing the evidence but is in fact, testing its evidentiary weight.

What do you think?