RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
EXPLANATORY NOTE
Rule 1007 operates as an exception to Rule 1002 by allowing the contents of a writing, recording, or photograph to be proved by the admission of the party against whom it is offered, without accounting for the nonproduction of the original. To this extent, the rule is in accord with the common law. 4 Wigmore on Evidence 1256 (Chadbourn rev. 1972). However, in a departure from the leading case on the subject (Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579 (Exch. 1840)), not all admissions are recognized for the purpose of proving the contents of a writing, but only those that are written or given as testimony or in a deposition. This limitation is designed to insure that the admission will be accurately related to the trier of facts and thus excludes extrajudicial, oral admissions because these are vulnerable to erroneous transmission.See, generally, McCormick 242 (2d ed. 1972).
Rule 1007 is not intended to prevent the use of an opponent's admission to directly prove a fact that may also be evidenced by a writing. Only where the admission is used to prove the contents of a writing will Rule 1007 come into play. The test is much the same as that utilized under Rule 1002 to determine whether the contents of a writing are in issue. Nor should Rule 1007 be held to bar the use of an adverse party's admission where secondary evidence becomes admissible under the other provisions of Article X. See Rules 1004 and 1005.
Rule 1007 was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Minutes of Joint Procedure Committee: March 24-25, 1988, page 12; December 3, 1987, page 15; January 29, 1976, pages 16, 17. Rule 1007, Federal Rules of Evidence; Rule 1007, SBAND proposal.