RULE 1002. REQUIREMENT OF
To prove the content of a writing, recording or photograph, the original writing,
or photograph is required, except as otherwise provided by these rules, by other rules
adopted by the North Dakota supreme court, or by statute.
An original writing, recording, or photograph is required in order to prove its content unless these rules, another rule adopted by the North Dakota Supreme Court, or a statute provides otherwise.
Rule 1002 was amended, effective____________________.
Rule 1002 is based on Fed.R.Ev. 1002.
Rule 1002 states the rule that
"to prove the content of a writing, recording, or photograph"
the original is required. This rule is a familiar one as applied to writings; it is expanded under
this section to include recordings and photographs. Advisory Committee's Note to Rule 1002,
Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
The rule is intended to be one of preference, rather than one of rigid application. The definitions contained in Rule 1001 and the ensuing Rules 1003-1007 are designed to insure that the rule operates as an aid in the search for truth and not as a rule of needless exclusion of evidence.
Perhaps the most persistent problem in applying this rule lies in determining whether the rule should be applied at all. To phrase this in terms of the present section: When are the contents of a writing, recording, or photograph sought to be proved?
With respect to writings, there are
certain instances in which it is clear that testimony is
given, or a writing utilized, for purposes other than to prove the contents of a writing. For
example, a witness may use a writing to refresh his memory without coming under this rule
(see, e.g., Kemmer v. Sunshine Mutual Ins. Co., 79 N.D. 518, 57 N.W.2d 856 (1953);
evidence of payment made may be given without producing the written receipt.
on Evidence, § 233 at 564 (2d ed. 1972).
Conversely, where the writing has a
legal, operative effect, as in the case of a deed, it must
be produced if its terms are to be proved. For example, where the contents of a notice of tax
sale are in issue, the
newspaper document containing the notice
must be produced; testimony
as to the contents of the notice will not be admitted. De Nault v. Hoerr, 66 N.D. 82,
N.W. 361 (1935). Thus, the
The test may be said to be one of legal efficacy of the document in question. And,
although this test has been criticized as one of difficult application, and one producing
questionable results (see, McCormick on Evidence, § 233 (2d ed.
1972)), it is retained,
but with safeguards which should remove the bases for such criticism. Rule
provides a basis for the non-application of this rule in cases where a writing is not closely
related to a material issue. Rules 611 and 614 allow the trial court to require written
evidence, when available, even though oral testimony would be acceptable under this rule.
See, 5 Weinstein's Evidence Para 1002(12) (1975).
This rule has application to photographs
as well as writings, although it is the rare case in
which the contents of a photograph will be in issue.
A photograph will often be
introduced to "illustrate" the testimony of a witness who has personally observed that which
is depicted in the photograph. McCormick on Evidence § 214 (2d ed.
1972). In these
cases, this rule does not apply. There are instances, however, such as defamation cases in
which the contents of the photograph are involved and are subject to this rule. Also,
photographs taken by automatic means, such as those used in many banks, will be subject
to the rule requiring production of the original.
Exception to this rule has been made in
recognition of the many statutes which direct the
admittance of certified copies of documents as if they were originals. See, e.g., N.D.C.C.
§ 26-15-04 and 28-23-12. These statutes, and those of
similar import, are left
undisturbed by this rule.
Rule 1002 was amended, effective ______________, 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
: of _______________; January 29, 1976,
page 14. Rule Fed.R.Ev.1002 , Federal Rules of
Evidence; Rule 1002, SBAND proposal.
NDREv, N.D.R.Ev. 1003 (Admissibility of Duplicates),