The best evidence rule applies only when a party seeks to prove the contents of a writing. It has no application where a party seeks to prove a fact which has an existence independently of any writing, and this is true even though a writing exists evidencing that fact. ‘The real reason for the rule,’ says it ‘shows why it has come to be generally accepted that only documents, or things bearing writing, can be within the purview of the rule. In the first place, it is in the terms and construction of language that the special risk of error lies. In the second place, it is chiefly in respect to language that slight inaccuracies are likely to be of important legal consequence. A mistake, for example, in counting the number of bushels in a bin of wheat can hardly lead to serious consequences, but a mistake in a few letters of an ordinary deed may represent it as giving to Jones instead of to Jonas or as giving five hundred instead of four hundred acres.’
In a decided case, involved a suit for damages by a lady who had been detained and subsequently released after she allegedly took a small quantity of items from the department store’s drug counter. After allegedly admitting the theft she signed a release and was allowed to leave. The repossessed items were put back into stock. The civil verdict in her favor was reversed by the Appellate Division with the observation that ‘substantial error occurred during the progress of the trial by the exclusion of the testimony offered on the part of the defendant that the several drug articles found in the plaintiff’s bag, and which she testified she had purchased at Macy’s, all bore the stamp and tag of the defendant.’ The trial criminal court had sustained the plaintiff’s objection to such testimony upon the ground that the articles themselves were the best evidence. The Appellate Division, in reversing, commented that the best evidence rule relates entirely to documentary evidence, and that the store’s witnesses were therefore competent to testify that the articles found upon the plaintiff all bore the trade mark or tag of the defendant. Put another way, the best evidence rule is intended to prevent fraud or mistake and to eliminate uncertainties that may result from faulty memory.
Although reported cases in this jurisdiction appear to be silent on the issue, there is precedent elsewhere for the position taken by the prosecution in the case at issue. Where, for example, the value of contents was in dispute in a case dealing with larceny of a suitcase and its contents, the Supreme Court of Utah refused to apply the best evidence rule, and accepted oral testimony of value without requiring the production in court of the items in question. In another case, the defendant, charged with robbery, claimed that the object of the robbery–a camera case–had to be produced or its failure to do so explained before oral testimony could be admitted to describe it. The Illinois Appellate Court held that this was not necessary, and sustained the trial court’s ruling that the identity or value of the victim’s property, and the fact that it had a value could be established by oral testimony without accounting for the whereabouts of the camera case at the time of trial.