RULE 1002. REQUIREMENT OF ORIGINAL
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by these rules, by other rules adopted by the North Dakota Supreme Court, or by statute.
EXPLANATORY NOTE
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. McCormick 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 containing the notice must be produced; testimony as to the contents of the notice will not be admitted. DeNault v. Hoerr, 66 N.D. 82, 262 N.W. 361 (1935).
Thus, 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 1003(4) 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 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. Normally, a photograph will 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., 26-15-04 and 28-23-12, NDCC. These statutes, and those of similar import, are left undisturbed by this rule.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 14. Rule 1002, Federal Rules of Evidence; Rule 1002, SBAND proposal.
CROSS REFERENCE: Rule 1003, NDREv, statutes considered.