Contents of Writings, Recordings, and Photographs

Question 1

When is an original required?

Answer 1

An original writing, recording, or photograph is required in order to prove its content unless the FRE or a federal statute provides otherwise.

FRE 1002.

Question 2

What is the best evidence rule?

Answer 2

The best evidence rule applies only where the contents of a writing are at issue.

When a witness without personal knowledge introduces the contents of a document into evidence as proof of what it says, the best evidence rule applies.

The best evidence rule applies in situations where the content of a writing directly affects legal rights that are at issue in the case.

If the witness’s testimony is reliant on the writing, the best evidence rule applies.

The best evidence rule does not apply to first-hand testimony is used to prove the content of the record. This includes: receipts, birth, death, and marriage certificates.

Question 3

Are duplicates admissible?

Answer 3

A duplicate is admissible to the same extent as an original unless:

1. a genuine question is raised about the original’s authenticity; or
2. the circumstances make it unfair to admit the duplicate.

FRE 1003.

Question 4

When is other evidence of a writing’s content admissible?

Answer 4

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

1. all the originals are lost or destroyed, and not by the proponent acting in bad faith;
2. an original cannot be obtained by an available judicial process;
3. the party against whom the original would be offered: a. had control of the original, b. was at that time put on notice, by pleadings or otherwise, that the original would be subject of proof at the trial or hearing, and c. fails to produce it at the trial or hearing; or
4. the writing, recording, or photograph is not closely related to a controlling issue.

FRE 1004.

Question 5

What evidence of the contents of a public record is required?

Answer 5

The proponent may use a copy to prove the content of an official record if the following conditions are met:

1. the record or document is otherwise admissible; and
2. the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.

FRE 1005.

Question 6

When are summaries admissible?

Answer 6

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, photographs that cannot be conveniently examined in court.

The originals must be made available.

FRE 1006.

Question 7

When is testimony of a party admissible to prove content?

Answer 7

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

FRE 1007.