By Skupsky, Donald S.
ARMA Records Management Quarterly , Vol. 26, No. 3
NOTICE: This article contains information related to sensitive and important legal issues. No section of this article should be construed as providing legal advice. All legal decisions related to records and information management should be reviewed by competent legal counsel.
Traditions are hard to change, especially in the legal profession. The reliance of the legal community on precedent highlights the problem. Legal precedent means "looking at yesterday's solutions to today's problems."
The law changes slowly to protect society. All of us want to be treated fairly. When the "rules of the game" remain constant, we can modify our behavior to conform with what the law expects. If the rules constantly change, we may not know what is expected or what we can or cannot legally do. If the law changes too fast, we end up punishing people for actions they could not reasonably anticipate. While "ignorance of the law is no excuse," ignorance of changes in the law is also no excuse.
Courts will generally utilize precedent--previously established legal principles--when determining the outcome of current cases. The public should already be familiar with yesterday's solutions or legal principles. In most cases, we expect these established principles to merely be applied to new fact situations.
State and federal legislative bodies also change the law at a slow pace. Each change in a statute requires slow and careful deliberation. United States federal regulations, for example, cannot be changed until the public has been provided adequate time to comment and the Office of Management and Budget has reviewed recordkeeping provisions falling under the Paperwork Reduction Act.
In some cases, however, the established legal principle has outgrown its usefulness. Change is needed at a much faster pace than provided for by the normal pace of change.
The evolving technologies affecting records represent an obvious area where change in the law is needed at a much faster pace than is currently being addressed by courts and legislative bodies. The change that is needed is not related to a particular technology or approach--contrary to the view of advocates trying to change current laws to recognize optical disk technology. The change that is needed relates to the underlying legal principle governing the legal acceptance of records the Best Evidence Rule.
THE BEST EVIDENCE RULE
The Best Evidence Rule has evolved from court decisions starting in the Middle Ages and laws enacted primarily in the last one hundred years. In its most basic form, the Best Evidence Rule states that the best or highest form of evidence available to a party must be presented in evidence. For example, a party cannot rely solely on the testimony of an individual who knows something about a subject when another individual is available who is thoroughly familiar with the facts in the matter.
The Best Evidence Rule originally was developed to ensure that the courts considered the best evidence related to a particular matter. In the Middle Ages, live testimony was the primary form of evidence accepted by courts. At that time, courts did not allow records in any form to be admitted in evidence because they were hearsay records created outside of the court that a party wanted to introduce into evidence to prove the truth of the matter asserted in the records. Between live testimony and records, live testimony was not just the best evidence, it was the only evidence.
As British society progressed through the Middle Ages, more and more organizations maintained records that accurately documented transactions. When employees familiar with certain events became unavailable to testify at trial, these organizations requested the courts to accept records in place of the live testimony. The pressure on the courts to change the Best Evidence Rule grew as the volume and reliance on records grew.
Finally, succumbing to substantial societal pressure, courts modified prevailing rules of evidence to recognize the "Business Records Exception to the Hearsay Rule. …