Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. In a jury trial, the jury determines, in accordance with Rule 104(b), any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
Rule 1008 was amended, effective March 1, 2014.
Rule 1008 is based on Fed.R.Ev. 1008.
Rule 1008 divides the functions of judge and jury with respect to preliminary questions of admissibility under the rules requiring or exempting the production of original writings, recordings, or photographs. This rule is but a specific application of Rule 104, which separates the function of judge and jury with respect to preliminary questions of admissibility in general. As such, Rule 1008 has as its fundamental divider between the functions of judge and jury the same distinction between preliminary questions relating to the competence of evidence and those relating to conditional relevancy. See Rule 104 and Explanatory Note.
As explained in the explanatory note to Rule 104, preliminary questions of admissibility which involve the competence of proffered evidence are properly decided by the judge, as these are questions whose answers are based upon broad policy considerations and the fulfillment of technical legal standards. Conversely, questions which are of relevance conditioned on fact are normally questions of probative value of the proffered evidence, and are logically to be decided by the jury.
Applying this distinction to the questions which are likely to arise under the rules of this article, a division of duties becomes apparent. Preliminary questions of fact may arise when determining whether secondary evidence should be admitted pursuant to the rules of this article, such as Is the original lost? Was a diligent search conducted for it? Is the original unobtainable because it is a public document? Is it outside the jurisdiction? Does the other party have possession or control over the original? Is the authenticating witness' testimony incompetent as hearsay or because of privilege?
Examination of these questions reveals that their answers depend upon consideration of what the "best evidence" rule is intended to accomplish and also upon application of legal standards. The examples quoted are of questions to be decided by the judge under Rule 1008.
Contrast with these the questions which, under Rule 1008, are to be decided by the jury: Did the asserted writing ever exist? Is another writing the original? Does other evidence of contents correctly reflect the contents? These are questions which involve only the relevance of the proffered evidence and may be answered without application of legal standards or policy considerations. The jury may, after answering the question, simply accord the writing the appropriate probative value; it needn't ignore the evidence as if it were inadmissible as hearsay.
A further reason for distinguishing between questions involving competence and those involving conditional relevance is that the former are solely preliminary but the latter have a tendency to transcend the status of a preliminary question and become central issues of a case. Thus, the reason for distinguishing between the two becomes one of fairness to the parties. As stated by the Advisory Committee for the Federal Rules of Evidence:
"However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue." Advisory Committee's Note to Fed.R.Ev. 1008.
This rule is designed to insure consideration by a jury of critical issues that also happen to be preliminary issues. It should be noted at this point that Rule 1008 is intended to apply to all questions of conditional relevance, not just those listed in the rule.
Finally, as a matter of practice, notice should be taken that Rule 1008 incorporates the provisions of Rule 104 as to the procedure for determining preliminary questions of admissibility. Thus, even as to questions to be decided by the jury, the judge plays a part in the determination. The judge, under this rule, as under Rule 104, should admit asserted evidence if he believes the proponent will establish the conditional fact to the satisfaction of a reasonable juror, subject to an instruction to the jury to disregard the evidence if they ultimately find against the existence of the conditional fact.
CROSS REFERENCE: N.D.R.Ev. 104 (Preliminary Questions).