Making Sense of the Original Writings Rule in the Digital Age

Abstract

Few provisions contained within the Rules of Evidence have generated as much confusion among judges and practitioners as the original writings rule (Rule), miscast as the “best evidence rule.” The Rule is often misunderstood both as to its purpose and its proper application. Further, obfuscation caused by the Rule seems to quadruple when layering in problems created by advances in technology and the digital age. This commentary briefly reviews the origin and scope of the Rule and provides a general framework for approaching issues arising from it. The piece then addresses how the Rule might apply to technological advances in the digital age. For example, how does the Rule apply to computer-generated databases? More specifically, what limits a prosecutor’s use of information contained in a computer database to prove a defendant’s prior convictions? This very question arose in a recent case before the North Carolina Supreme Court. In that case, a fractured court employed differing – and, indeed, contradictory - analyses in seeking to resolve the issue. While the court did not put to rest tensions underlying the Rule, it did indicate that an old proposition continues to apply within this domain: “perfect is the enemy of the good,” as in, expect ambiguity when advancing technology is at the core of a problem.