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Effective Date: 3/1/2014

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 March 1, 2014.

Rule 1005 is based on Fed.R.Ev. 1005.

It is recognized under Rule 1005 that requiring production of original public records would be attended by serious inconvenience to the public and to the custodian. Therefore, Rule 1005 is designed to provide a limited exception to Rule 1002 in those cases 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 accomplished under Rule 902, which in turn incorporates the statutes of North Dakota. See Rule 902(4). The methods of proving official documents contained in Chapter 31-09, NDCC, 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 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 copy.)

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 is 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.

Rule 1005 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 28; January 29, 1976, page 16. Fed.R.Ev. 1005; Rule 1005, SBAND proposal.

Statutes Affected:

Considered: N.D.C.C. ch. 31-09.

Cross Reference: N.D.R.Ev. 902 (Evidence that is Self-Authenticating), N.D.R.Ev. 1002 (Requirement of the Original), N.D.R.Ev. 1003 (Admissibility of Duplicates).

Effective Date Obsolete Date
03/01/2014 View
01/29/1976 03/01/2014 View