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Copyright (c) 1988 Iowa University
Iowa Law Review

ARTICLE: The Best Evidence Principle

January, 1988

73 Iowa L. Rev. 227


Dale A. Nance *


The first therefore, and most signal Rule, in relation to Evidence, is this That a Man must have the utmost Evidence, the Nature of the Fact is capable of; For the Design of the Law is to come to rigid Demonstration in Matters of Right, and there can be no Demonstration of a Fact without the best Evidence that the Nature of the Thing is capable of; less Evidence doth create but Opinion and Surmise, and does not leave a Man the entire Satisfaction, that arises from Demonstration.

-- Chief Baron Geoffrey Gilbert (c.1726) 1

While some modern opinions still refer to the "best evidence" notion as if it were today a general governing legal principle [,] most would adopt the view of modern text writers that there is no such general rule. The only actual rule that the "best evidence" phrase denotes today is the rule requiring the production of the original [of a] writing.

-- Dean Charles McCormick (c.1954) 2

The last two centuries have witnessed a major change in professional attitudes toward the rules controlling the proof process in Anglo-American courts. This Article runs against the tide, for my thesis is that there exists, even today, a principle of evidence law that a party should present to the tribunal the best evidence reasonably available on a litigated factual issue. This principle is not absolute, and in particular circumstances other considerations may override it or excuse its nonsatisfaction. Nevertheless, it is a general principle ...
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