BEST EVIDENCE RULE
NOTE: the rule applies only where the content of the document is the
Meaning of the best evidence
1. The best evidence as embodied in section 3 of rule 130 provides:
Sec 3 Original document must be produced; exceptions
When the subject of the inquiry is the contents of the document, no
evidence shall be admissible other than the original document itself, except
in the ff cases:
a. When the original has been lost or destroyed or cannot be produced in
court without bad faith on the part of the offeror
b. When the original is in custody or under control of a party against whom
the evidence is offered, and the latter fails to produce it after a reasonable
notice
c. when the original consists of voluminous accounts or other documents
which cannot be examined without great loss of time and the fact sought to
be established from them is only general result of the whole
d. when the original is a public record in custody of a public officer or is
recorded in a public office
2. the term best has nothing to do with the degree of its probative value in
relation to the other types of evidentiary rules. It is not intended to mean the
“most superior” evidence.
NOTE: more accurately it is the original document rule or the primary
evidence rule
3. This only applies when the evidence is documentary. Also it does not
apply just because a document is offered in evidence.
- The rule only covers situations in which the subject of inquiry is the
contents of the document. Subject to certain exceptions, under the best
evidence rule when the subject of inquiry relates to the contents of a
document, no evidence shall be admissible other than the original document
itself.
- The key to understanding the best evidence rule is simply to remember
that the rule cannot be invoked unless the contents of writing is the subject
of judicial inquiry in which case the best evidence is the original writing
4.
subject of the inquiry. Where the issue is as to the execution or existence of
the document or the circumstances surrounding its execution, best evidence
rule does not apply and testimonial evidence is admissible.
Purpose of the rule
1. The best evidence rule ensures that the exact contents of a document are
brought before the court.
- In deeds, wills and contracts, a slight variation in words may mean a great
deal of difference in the rights and obligations of the parties.
- a substantial hazard of inaccuracy exists in the human process of making a
copy by handwriting or typewriting.
- the best evidence rule acts as an insurance against fraud
- the rule likewise protects against misleading inferences resulting from
intentional or unintentional introduction of selected portions of a larger set
of writings
NOTE: the copy of the original is not as reliable as the latter because of
possible inaccuracy in the process of copying and the danger of erroneous
transmission in the original
Waiver of the rule
1. the best evidence rule may be waived if not raised in the trial.
When document is merely collaterally in issue
1. when a document is involved in the inquiry but the document is only
collaterally in issue, best evidence does apply.
- a document is said to be collaterally in issue when the purpose of
introducing the document is not to establish its terms, but to show facts that
have no reference to its contents like its existence, condition, execution or
delivery
example: when a witness testifies that the victim was writing a letter when
he was shot by the accused, the judge would likely rule against the party
who insists on the presenation of the letter because it is not the subject of an
impt issue in the case
How to apply the best evidence rule
1. 1st step – determine the matter inquired into
note: if the inquiry involves a document and its contents are the subject of
the same inquiry then the best evidence rule applies and must therefore be
complied with
2. what if for one reason or another the original cannot be presented in
evidence?
2nd step comes into play (2 stages)
a. Finding an adequate legal excuse for the failure to present original
b. Presenting a secondary evidence allowed by the ROC
PRESENT THE ORGINAL, EXCEPT WHEN YOU CAN JUSTIFY ITS
UNAVAILABILITY IN THE MANNER PROVIDED UNDER THE ROC
2 requisites for the BER
a. Subject matter must involve a document
b. The subject of the inquiry is the contents of the document
Excuses for not presenting the original document
1. Excuses for the non-production of the original document refer to the
instances when the original does not have to be produced even when the
contents of the document are the subjects of inquiry.
a. When the original has been lost or destroyed or cannot be produced in
court, without bad faith on the part of the offeror
b. When the original is in custody or under the control of the party against
whom evidence is offered, and the latter fails to produce it after reasonable
notice
c. When the original consists of numerous accounts or other documents
which cannot be examined in court without great loss of time and the fact
sought to be established from them is only the general result of the whole
d. When the original is a public record in the custody of a public officer or
is recorded in a public office
Requisites for the introduction of secondary evidence in case of loss,
destruction, or unavailability of the original
1. Secondary evidence refers to evidence other than the original instrument
or document itself
1st exception – this does not only cover loss or destruction but also other
reasons for the failure to produce the original in court even if the original is
not lost or destroyed as when the original is beyond the territorial
jurisdiction of the court
2. Under sec 5 or Rule 130 secondary evidence may be admitted only by
laying the basis for its production.
a. offeror must prove the existence and execution of the original document
b. the offeror must show the cause of its unavailability such as the loss or
destruction of the original
c. offeror must show that the unavailability was not due to his bad faith
NOTE: after complying with the reqts for laying the basis for introduction
of secondary evidence, the offeror may now be allowed to prove the
contents of the documents by secondary evidence
3. Based on the rules, the presentation of secondary evidence should be in
the following order:
a. Copy of the original
b. Recital of the contents of the document in some authentic document or
c. By the testimony of witnesses
Correct order of proof: existence, execution, loss and contents
Requisites for the introduction of secondary evidence when the original
is in the custody or control of the adverse party
1. a showing that the original document is in the custody or under the
control of the adverse party does not ipso facto authorize the introduction of
secondary evidence to prove its contents.
(the party who seeks to present secondary evidence must first lay basis for
its introduction. Laying the basic requires proof of the ff:
a. that the original exists
b. that the said document is under the custody or control of the adverse
party
c. that the proponent of secondary evidence has given the adverse party
reasonable notice to produce the original document
d. that the adverse party failed to produce the original document despite
reasonable notice
2. The mere fact that the original of the writing is in the custody or control
of the party against whom it is offered does not warrant the admission of
secondary evidence. The offeror must prove that he has done all in his
power to secure the best evidence by giving notice to the said party to
produce the document.
- notice may be in the form of a motion for production of the original or via
a subpoena duces tecum
3. after the foundational reqts for the introduction of secondary evidence has
been complied with, secondary evidence may now be presented.
a. Copy of the original
b. Recital of the contents of the document in some authentic document or
c. By the testimony of witnesses
Requisites for the introduction of secondary evidence when the original
document is a public record
1. There are instances when the original of a document is a public record or
is recorded in a public office
2. Public record are generally not to be removed from the places where they
are recorded and kept
- For this reason, the proof of the contents of the document, which form
parts of a public record, may be done by secondary evidence.
- Evidence is a certified true copy of the original
Effect of not offering a document in evidence after calling for its
production and inspection
1. If a party who calls for the production of a document does not offer the
same in evidence, no unfavorable inference may be drawn from such
failure.
2. Under Sec 8 of Rule 130, a party who calls for the production of a
document is not required to offer it.

Requisites for the introduction of secondary evidence when the original

consists of numerous accounts
1. under this exception, the secondary evidence is admissible:
a. if the original consists of numerous accounts or other documents
b. such accounts or documents cannot be examined in court without great
loss of time
c. and the fact sought to be established from them is only the general result
of the whole

2. the trial court may admit a summary of the voluminous original

documents in lieu of the original documents if the party has shown that the
underlying writings are numerous that an in-court examination of these
documents would be inconvenient.

Example: accountant’s written summary of some 150,000 sales invoices for

goods sold by the plaintiff may be allowed