So What Is The Best Evidence?

By Evidence ProfBlogger 

Federal Rule of Evidence 1002, often called the Best Evidence Rule, states that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

But, as was the case in United States v. Delorme, 964 F.3d 678 (8th Cir. 2020), the Best Evidence Rule often doesn’t require the best evidence.

In Delorme, Calvin Delorme was convicted of aggravated sexual abuse. One piece of evidence used against Delorme at trial was testimony by Bureau of Indian Affairs Special Agent John Rogers who did a recorded interview of Delorme. After he was convicted, Delorme appealed, claiming that the Best Evidence Rule required the State to introduce the recording of his interview into evidence.

The Eighth Circuit disagreed, noting that Agent Rogers had independent personal knowledge of what Delorme said, i.e., his knowledge of what Rogers said was not dependent on the recording. Therefore, the State was not seeking to prove the contents of the recording; instead, they were just having an agent testify to an event that happened to be recorded. Therefore, while the recording would almost certainly better reflect what Delorme said, the Best Evidence Rule did not require its admission.

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