secondary evidence


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Related to secondary evidence: Primary Evidence

Secondary Evidence

A reproduction of, or substitute for, an original document or item of proof that is offered to establish a particular issue in a legal action.

Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be an exact replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence.

Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule. Nevertheless, a court may allow a party to introduce secondary evidence in a number of situations. Under rule 1003 of the Federal Rules of Evidence, a duplicate is admissible unless a genuine question is raised as to its authenticity or unless it would be unfair to admit the duplicate in place of the original piece of evidence.

After hearing arguments by the parties, the court decides whether to admit secondary evidence after determining whether the evidence is in fact authentic or whether it would be unfair to admit the duplicate. However, when a party questions whether an asserted writing ever existed, or whether a writing, recording, or photograph is the original, the trier of fact makes the ultimate determination. The trier of fact is the judge if it is a bench trial; in a jury trial, the trier of fact is the jury.

Rule 1004 of the Federal Rules of Evidence lists specific exceptions to the best evidence rule. Under rule 1004, secondary evidence of a writing, recording, or photograph is admissible if (1) all originals are lost or destroyed, unless they were lost or destroyed in bad faith by the party seeking to introduce the secondary evidence; (2) no original can be obtained by judicial process or procedure; (3) the party's opponent in the case has possession of the original and does not produce it after being given sufficient notice that the evidence would be subject to examination at a court hearing; or (4) the original evidence is not closely related to a controlling issue in the case.

Further readings

Green, Eric D., and Charles R. Nesson, and Peter L. Murray. 2000. Problems, Cases, and Materials on Evidence. 3d ed. Gaithersburg, Md.: Aspen Law & Business.

Cross-references

Primary Evidence.

See: hearsay

secondary evidence

evidence that is not of the best and most direct character which may be excluded if that better evidence is available.

SECONDARY EVIDENCE. That species of proof which is admissible on the loss of primary evidence, and which becomes, by that event, the best evidence. 3 Bouv. Inst. n. 3055.

References in periodicals archive ?
The defense pointed out that the statute further provides that secondary evidence "shall" be excluded if the court determines either that "[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion" or that "[a]dmission of the secondary evidence would be unfair." (22) The defense asserted that there was a genuine dispute as to the contents of the surveillance tape, since the minor denied that it would have showed him stealing; and that justice and fairness required the exclusion of the officer's testimony, because the defense had an inadequate basis on which to cross-examine the officer about the tape.
However, DNA could only be used as a secondary evidence.
I went to a comprehensive school in the eighties and my first history lesson involved identifying the primary and secondary evidence sources that would tell us about a man buried in a peat bog.
Simon Hall has included a wealth of primary and secondary evidence in support of his thesis that these movements all deployed the tactics and rhetoric of the 1960s protest movements to shape national political debate successfully.
Eighteen months later primary evidence is non-existent and secondary evidence disputed.
The book includes illustrations from across the 19th and 20th century taken from a range of primary and secondary evidence including postcards, newspaper images and artistic images.
In this situation, secondary evidence usually provides decisive support to the legitimate complainant.
In support of its holding that the inevitable discovery rule should apply only to secondary evidence, the court in Stith noted that: When the inevitable discovery rule is applied to secondary evidence ...
In looking at studies in non-pregnant women as secondary evidence of whether or not there might be a benefit to pregnant women, Mintzes finds there isn't evidence that SSRIs work better than non-drug treatment, like psychotherapy for most forms of depression, and she is concerned that the benefits of SSRIs in adults--pregnant or not--have been shown to be exaggerated.
Given the potential resurgence in long-tail claims, it is essential that you or your in-house counsel canvas the company for all insurance policies (or secondary evidence of policies) issued to it, no matter how long ago.