RULE 1002. REQUIREMENT OF THE ORIGINAL
Effective Date: 3/1/2014
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 March 1, 2014.
Rule 1002 is based on Fed.R.Ev. 1002.
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 and evidence of payment made may be given without producing the written receipt.
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 document containing the notice must be produced; testimony as to the contents of the notice will not be admitted.
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, it is retained, but with safeguards which should remove the bases for such criticism. Rule 1003 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.
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. 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. § 28-23-12. These statutes, and those of similar import, are left undisturbed by this rule.
Rule 1002 was amended, effective March 1, 2014, 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 Minutes of September 27, 2012, page 27; January 29, 1976, page 14. Fed.R.Ev. 1002; Rule 1002, SBAND proposal.
Cross Reference: N.D.R.Ev. 1003 (Admissibility of Duplicates), statutes considered.