prabodh kumar patel (advocate) 10 November 2008

Primary & Secondary Evidence

How to differentiate between primary evidence & secondary evidence?

Please describe in detail with examples?

Thanks.

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4 Replies

Shree. ( Advocate.) 10 November 2008

Dear P.K.Patel,

Primary and secondary evidence are most easily discussed together. Primary evidence is sometimes also called "best evidence." It is the best evidence available to prove the fact in question, usually in an original document or record. The so‑called "best evidence rule" says that the highest possible degree of proof must be produced. The rule is realistic in its approach to evidence inasmuch as it does not ask the impossible, but rather looks at each question individually, on its own merits and circumstances. For example, it does not require evidence from a birth certificate to establish genealogical fact if the birth in question took place before birth registration. If, however, the primary evidence is from a document or record, rather than from first‑hand testimony of an eye‑witness, then the person who created that record (or who provided the information for its creation) must have been an eye‑witness to, or have had a special immediate interest in, the eventrecorded.

Secondary evidence is harder to define meaningfully. In essence it is all that evidence which is inferior in its origin to primary evidence (i.e., not the best evidence). That does not mean secondary evidence is always in error, but there is a greater chance of error. A copy of an original record provides secondary evidence, as does oral testimony of the record's contents. Published genealogies and family histories, as this definition should make clear, also provide secondary evidence.

Classifying evidence as either primary or secondary does not tell us anything about its accuracy or its ultimate value. This is especially true of secondary evidence. Thus it is always a good idea to ask the following questions:

1. How far removed from the original is it (when it is a copy)?

2. What was the reason for the creation of the source which contains this evidence?

3. Who was responsible for creating this secondary evidence and what interest did he have in its accuracy?

There are some situations where secondary evidence might be of even greater worth than primary evidence. These include those situations where the creator has carefully collected information from many sources (actually working with the primary evidence) into one place, such as a good family history.

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K.C.Suresh (Advocate) 11 November 2008

Primary Evidence: An authentic document or item that is offered as proof in a lawsuit, as contrasted with a copy of, or substitute for, the original. Primary evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item. It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must offer it as evidence. When, however, primary evidence is unavailable—for example, through loss or destruction—through no fault of the party, he or she may present a reliable substitute for it, once its unavailability is sufficiently established.

Secondary Evidence: 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.

N.K.Assumi (Advocate) 11 November 2008

Shree Ji, you have put it beautyfully. Could you knidly throw some more lights on federal rules of Evidence? To be honest I have never come across such Rules and I never knwe such Rules ever exist in India, grateful if you let me know about it.

Shree. ( Advocate.) 13 November 2008

something that you say which means that if you have something, it is difficult for other people to take it away from you. It would be hard to ask for the piano back after they've had it for so long.

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