RULE 1005. COPIES OF PUBLIC
RECORDS TO PROVE
The contents of an official record, or of a document authorized to
be recorded or filed and
actually recorded or filed, including data compilations, in any form, if otherwise admissible,
may be proved by copy, certified as correct in accordance with Rule 902 or testified to be
correct by a witness who has compared it with the original. If a copy complying with the
foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of
the contents may be given.
The proponent may use a copy to prove the content of an official record, or of a document that was recorded or filed in a public office as authorized by law, if these conditions are met: the record or document is otherwise admissible; and 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. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
Rule 1005 was amended, effective____________________.
Rule 1005 is based on Fed.R.Ev. 1005.
It is recognized under Rule 1005 that
requiring production of original public records
be attended by serious inconvenience to the public and to the custodian. " Advisory
Committee's Note to Rule 1005, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
Therefore, Rule 1005 is designed to provide a limited exception to Rule 1002 in those
where official records or recorded documents are in issue.
Unlike the balance of the rules in Article
X, Rule 1005 recognizes, to a limited extent, the
existence of degrees of secondary evidence. Certified and compared copies are preferred over
other evidence of the contents of original public records. Certification of a copy is to be
pursuant to under Rule 902, which in turn
incorporates the statutes of North
Dakota. See Rule 902(4). Thus, the The methods of proving
official documents contained
in N.D.C.C. ch. 31-09, are permissible under Rule 1005.
The preference given to certified or
compared copies precludes the use of duplicates unless,
of course, the preferred copies are not available. Rule 1003 is therefore preempted by
application of Rule 1005. It should be noted, however, that Rule 1005 applies to documents
authorized to be recorded only if they are actually recorded or filed. In a case where the
terms of a document are in issue, if a
photostat or other copy is filed and
the original returned
to the owner, the original may be proved in any method permitted by Article X in general.
(However, if the contents of the document filed are in issue, e.g., to prove
notice, the filed
document is considered the "original" even if it is a photostat.)
The question may arise whether an
attempt must be made to produce the original if a
certified or compared copy cannot be obtained by a reasonably diligent effort. The answer
affirmative yes. The original is the best proof of its contents;
the admissibility of copies
is allowed to accommodate public officials and others who may use official or recorded
documents. This reasoning does not support the admissibility of oral evidence, for example,
where the original document could be produced. See, generally, 5 Weinstein's
1005(06); accord, Harmening v. Howland, 25 N.D. 38, 141 N.W. 131
Rule 1005 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 16. Rule Fed.R.Ev.1005 , Federal Rules of
Evidence; Rule 1005, SBAND proposal.
Considered: N.D.C.C. ch. 31-09.
Rule N.D.R.Ev. 902 (Evidence that is Self-Authenticating),
1002 (Requirement of the Original), N.D.R.Ev. 1103 , NDREv, statutes
considered(Admissibility of Duplicates).