RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
EXPLANATORY NOTE
As was discussed in relation to Rule 1001, the primary reasons for requiring the production of original documents are to prevent inaccurate reproductions of evidence and to prevent fraud. Technological advances have rendered the inaccurate copy a rarity. Rule 1001, in its definition of a duplicate, insures that only accurate reproductions will be admitted in lieu of originals. In light of this, Rule 1003 provides that a duplicate is admissible to the same extent as an original except where there is a genuine question as to a document's authenticity or whenever it would be unfair to admit the duplicate.
The first exception is intended to cover those cases in which there is a genuine allegation of inaccuracy of reproduction or where the circumstances surrounding the case yield a substantial suggestion that the original document is not authentic. Possibilities of fraud may arise, for example, where a party in possession of an original document claims that the document has been lost or destroyed. Of course, this factor alone should not preclude admission of a duplicate, but coupled with an allegation of fraud and an inadequate explanation of the loss or destruction, exclusion of a duplicate may be warranted. 5 Weinstein's Evidence 1003(02) (1975).
The circumstances of unfairness which would warrant exclusion of a duplicate cannot be set out with any precision. This exception is intended to prevent application of the general rule admitting duplicates whenever the circumstances are such that a party will be prejudiced by the absence of the original in evidence.
For example, where only a part of the original is reproduced, and the remainder bears upon the part offered in evidence, fairness would require production of the original. See Advisory Committee's Notes to Rule 1003, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
In the final analysis, it will be the responsibility of the courts to shape the parameters of this rule and its exceptions. The exceptions will necessarily be utilized in limited instances to insure fairness, but they should not be interpreted in a manner that undermines the policy of the general rule which is to further the use of duplicates as evidence of writings.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 15. Rule 1003, Federal Rules of Evidence; Rule 1003, SBAND proposal.
STATUTES AFFECTED:
CONSIDERED: 2-06-05, 4-09-05, 4-10-03, 4-11-19, 4-22-15, 6-08-10, 7-01-12, 7-08-02, 10-23-13, 10-28-09, 11-11-38, 11-13-08, 11-18-09, 12-44-18, 14-03-24, 15-29-10, 15-51-10, 19-01-10, 19-03.1-37, 19-20.1-17, 23-02-40, 24-02-11, 24-07-15, 26-08-07, 26-12-09, 26-12-15, 26-12-23, 26-15-04, 26-15-26, 28-23-12, 31-04-10, 31-08-01.1, 31-08-06, 31-09-02, 31-09-03, 31-09-04, 31-09-05, 31-09-06, 31-09-10, 33-01-13, 35-21-05, 35-22-11, 35-22-16, 37-01-34, 39-20-07, 40-04-06, 40-11-08, 40-16-09, 43-01-21, 43-07-13, 43-10-07, 43-13-12, 43-19.1-10, 43-28-08, 43-32-16, 44-06-08, 44-06-09, 47-19-06, 47-19-45, 48-02-15, 49-01-14, 54-46.1-03, 57-24-29, 61-02-34, 61-03-06, 61-05-19, 61-16-06, NDCC.