RULE 1008. FUNCTIONS OF THE COURT AND JURY
Whenever the admissibility of other evidence of contents of writings, recordings, or
photographs under these rules depends upon the fulfillment of a condition of fact, the
question whether the condition has been fulfilled is ordinarily for the court to determine in
accordance with the provisions of Rule 104. However, when an issue is raised whether (1)
the asserted writing, recording, or photograph ever existed, (2) another writing, recording,
or photograph produced at the trial is the original, or (3) other evidence of contents correctly
reflects the contents, the issue is for the trier of fact to determine as in the case of other issues
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. In a jury trial, the jury determines, in accordance with Rule 104(b), any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
Rule 1008 was amended, effective March 1, 2014.
Rule 1008 is based on Fed.R.Ev. 1008.
Rule 1008 divides the functions of judge and jury with respect to preliminary questions of admissibility under the rules requiring or exempting the production of original writings, recordings, or photographs. This rule is but a specific application of Rule 104, which separates the function of judge and jury with respect to preliminary questions of admissibility in general. As such, Rule 1008 has as its fundamental divider between the functions of judge and jury the same distinction between preliminary questions relating to the competence of evidence and those relating to conditional relevancy. See Rule 104 and Explanatory Note.
As explained in the explanatory note to Rule 104, preliminary questions of admissibility which involve the competence of proffered evidence are properly decided by the judge, as these are questions whose answers are based upon broad policy considerations and the fulfillment of technical legal standards. Conversely, questions which are of relevance conditioned on fact are normally questions of probative value of the proffered evidence, and are logically to be decided by the jury.
Applying this distinction to the questions which are likely to arise under the rules of this
article, a division of duties becomes apparent.
Weinstein gives us examples of the
preliminary Preliminary questions of fact which may arise
when determining whether
secondary evidence should be admitted pursuant to the rules of this article, such as:
original lost? Was a diligent search conducted for it? Is the original unobtainable because
it is a public document? Is it outside the jurisdiction? Does the other party have possession
or control over the original? Is the authenticating witness' testimony incompetent as hearsay
or because of privilege? " 5 Weinstein's Evidence Para 1008(01) (1975).
Examination of these questions reveals that their answers depend upon consideration of what the "best evidence" rule is intended to accomplish and also upon application of legal standards. The examples quoted are of questions to be decided by the judge under Rule 1008.
Contrast with these the questions which, under Rule 1008, are to be decided by the jury:
Did the asserted writing ever exist? Is another writing the original? Does other evidence of
contents correctly reflect the contents? These are questions which involve only the relevance
of the proffered evidence and may be answered without application of legal standards or
policy considerations. The jury may, after answering the question, simply accord the writing
the appropriate probative value; it needn't ignore the evidence as if it were inadmissible as
See 5 Weinstein's Evidence, supra, Para 1008(02) at 1008-9.
A further reason for distinguishing between questions involving competence and those involving conditional relevance is that the former are solely preliminary but the latter have a tendency to transcend the status of a preliminary question and become central issues of a case. Thus, the reason for distinguishing between the two becomes one of fairness to the parties. As stated by the Advisory Committee for the Federal Rules of Evidence:
"However, questions may arise which go beyond the mere administration of the rule
preferring the original and into the merits of the controversy. For example, plaintiff offers
secondary evidence of the contents of an alleged contract, after first introducing evidence
of loss of the original, and defendant counters with evidence that no such contract was ever
executed. If the judge decides that the contract was never executed and excludes the
secondary evidence, the case is at an end without ever going to the jury on a central issue."
Advisory Committee's Note to
Rule Fed.R.Ev.1008 , Federal
Rules of Evidence Pamphlet
(West Pub. Co. 1975).
This rule is designed to insure consideration by a jury of critical issues that also happen to
be preliminary issues. It should be noted at this point that Rule 1008 is intended to apply to
all questions of conditional relevance, not just those listed in the rule.
Evidence, supra, Para 1008(01) at 1008-5, 6.
Finally, as a matter of practice, notice should be taken that Rule 1008 incorporates the
provisions of Rule 104 as to the procedure for determining preliminary questions of
admissibility. Thus, even as to questions to be decided by the jury, the judge plays a part in
the determination. The judge, under this rule, as under Rule 104, should admit asserted
evidence if he believes the proponent will establish the conditional fact to the satisfaction
of a reasonable juror, subject to an instruction to the jury to disregard the evidence if they
ultimately find against the existence of the conditional fact.
1 Weinstein's Evidence,
Para 104(02) (5).
Rule 1008 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of September 27, 2012,
page 29; January
29, 1976, page 17; October 1, 1975, page 9. Rule
Fed.R.Ev.1008 , Federal Rules of
Evidence; Rule 1008, SBAND proposal.
Rule N.D.R.Ev. 104 , NDREv