best evidence rule

Know the Best Evidence Rule

Posted by David Adelstein on June 02, 2016
Evidence / Comments Off on Know the Best Evidence Rule


I previously discussed the best evidence rule.   Check out the article for more information on this evidentiary rule. It is important to know the best evidence rule when litigating negotiable instruments or even contractual disputes.  You do not want to try such a dispute without understanding the application of the best evidence rule.

The recent mortgage foreclosure case of Rattigan v. Central Mortgage Company, 41 Fla. L. Weekly D1312a (Fla. 4th DCA 2016) is an example of the application of the best evidence rule. In this case, the lender at trial failed to introduce the written loan modification to a promissory note that increased the principal amount of the note.   The modification to the note was a different instrument than the original note (that was modified). The lender was proceeding on the loan modification and not the original note.  The Fourth District held that the lender:

[V]iolated the best evidence rule by virtue of its failure to introduce the [written] modification at trial (either the original or duplicate with an explanation as to why the original note was unavailableWithout the introduction of the modification, all testimony regarding the contents of that modification…was erroneous. As a result, there is no proper evidence in the record which could support the final judgment.

Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Best Evidence Rule

Posted by David Adelstein on November 18, 2015
Evidence / Comments Off on Best Evidence Rule


Florida Statutes s. 90.952, 90.953 and 90.954 codify what is called the “best evidence rule.”

“The best evidence rule requires that if original evidence is available, then no evidence should be received which is merely substitutionary in nature….The best evidence rule is applicable only to exclude evidence where the contents of a writing is at issue.” State v. Eubanks, 609 Do.2d 107, 109 (Fla. 4th DCA 1992);

These statutes provide:


Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.


A duplicate is admissible to the same extent as an original, unless:

(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.

(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.


The original of a writing, recording, or photograph is not required, except as provided in s. 90.953, and other evidence of its contents is admissible when:

(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.

(2) An original cannot be obtained in this state by any judicial process or procedure.

(3) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.

(4) The writing, recording, or photograph is not related to a controlling issue.


For example, in Sun Bank of St. Lucie County v. Oliver, 403 So.2d 583, 583-84 (Fla. 4th DCA 1981), a bookkeeper testified regarding her company’s deposit slips, books, and records without introducing such documents into evidence. The appellate found that this testimony violated the best evidence rule: “The best evidence in the instant case would be the company records and only after their admission would Ms. Rogers’ [bookkeeper] testimony as to her findings be proper.”.

In another example, T.D.W. v. State, 137 So.3d 574 (Fla. 4th DCA 2014), a detective described the contents of what she viewed on a surveillance videotape. The detective’s testimony was offered to prove the truth of the contents of the video. The video was not introduced at trial. The appellate court held the detective’s testimony violated the best evidence rule: “Typically, useful surveillance video shows the commission of a crime; when offered to prove the crime without introduction of the video in evidence, a witness’s in-court description of the actions depicted on the video is content-based testimony that violates the best evidence rule.” T.D.W., 137 So.3d at 576.  But, in J.J. v. State, 170 So.3d 861 (Fla. 3d DCA 2015), the appellate court held that if a fact witness observed live events that were also recorded by video, the witness can describe the events even if the video is not admitted into evidence without violating the best evidence rule.

Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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