Since 1710 the courts of the Anglo-American juridical system have been seeking a solution to the problem of the existence of degrees of secondary evidence. Those courts which have determined that there are degrees have been confronted with the second problem concerning the circumstances under which the secondary evidence rule will actually preclude the admission of the evidence offered. In the majority of decisions the courts have relied on precedent, or on statements of text writers, stripped of their context, and have failed to. seek the solution in terms of the purposes for which rules of evidence have been devised. The result of this mechanical method has been complete confusion, not only when jurisdictional results are compared, but also when one attempts to align the decisions of a single jurisdiction. An attempt will be made herein to analyze the decisions which have directly dealt with the problem, in terms both of the results reached and the reasons, if any, suggested by the courts; and then to determine, in so far as it is possible, which solution seems preferable in the light of the ends which the rules of evidence seek to serve.
William H. Klein,
EVIDENCE - DEGREES OF SECONDARY EVIDENCE - PROBLEMS IN APPLICATION OF THE SO-CALLED "AMERICAN" RULE,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol38/iss6/6