it for inspection, the complexity of the inscription and the difficulty in photographing or reproducing the inscription.

Rule 1001(2) This rule recognizes the fact that the contents of photographs, x-rays and the like may be subject to the best evidence rule, inasmuch as, the contents of the photographs may be the subject of controversy. While the best evidence rule normally applies to the contents of writings, a modified application of the rule will surface where a witness is not likely to accurately testify, as to what he observed in a photo, without the actual production of the photo. This state of affairs may surface in a copyright infringement action or a libel action. Likewise, an expert witness should not be allowed to give testimony concerning what he observed in an x-ray without first producing the x-ray or explaining why it can't be produced.

Under this definition, of what constitutes a photograph, is included any medium which is capable of duplicating the exact features of another object. While many objects or evidence may be produced in court in the form of "photographs", it should be borne in mind that oral testimony, while not the best evidence, may be presented as well.

ILLUSTRATION

A film clip by ABC of a plane crash may be the most accurate or "best evidence". However, its production at trial does not prevent its proponent from introducing oral testimony concerning the same crash.

Rule 1001(3) This rule defines the "original" of any writing or recording as a writing or recording which receives or is accorded judicial significance. Often people view an original as the first document and any document made thereafter, from the original or first document, is called a In the manner in which the above terms are applied, the

duplicate or copy.

chronology of origin is considered decisive. Accordingly, whatever document

is created first is normally considered the original and any document thereafter is a duplicate or copy.

Under the rule, the above distinctions are removed and the parties determine to which document the term original will apply. However, there are occasions when acts of the parties may cause distinctions to arise between documents as to what document is the original and what document is a copy.

ILLUSTRATIONS

1)

2)

3)

The copy of a contract or document containing all of the terms and signed by all of the parties is the original.

The signed receipt is the original where delivery of goods is in issue; and

Where all carbons of a document are signed by the parties and notarized, no document may be preferred over the other because by the mere signing of each form, the signature asserts to the operative effect of that document.

The effect that a party intends for a document to have may effect whether it is an original or copy.

1)

2)

ILLUSTRATION

A signed letter tendering an acceptance to an offer will be the original in an action to determine whether an acceptance was made. A carbon copy of the letter in the files of the agent will be the original where the issue is whether he was authorized to accept.

A signed letter conveying a plea offer to the defendant is the original. A carbon copy in the defendant's file is the original where the issue is whether he knew of the offer.

The mere fact that the parties may refer to a document as a copy is not controlling where the attending facts point to the contrary.

ILLUSTRATION

Assume X, counsel for Y, drafts a settlement agreement, which is designed to end a law suit between W and Y. He sends duplicates of the agreement to Y, W and P, W's counsel in the case, with a request for their approval. He retains the draft from which the duplicates were made in his possession. Y, W, and P sign their copy of the agreement and mail it to X. X signs the draft and files the other signed papers along with the draft. In the above scenario, all four documents are originals for purposes of the agreement. Where X provided each party with a letter of acceptance to sign in lieu of signing the agreement, each signed letter of acceptance is an original.

Where information is contained in a medium not readily understood by the average person, the first production of the information in a form that can be understood is the original.

ILLUSTRATION

Assume X has data from a computer which he wants to have presented to the trier of fact. The existing form of the data cannot be readily understood by the Jury. Accordingly, X should be allowed to reproduce the information, contained in the computer, in a form that can be understood. this occurs, the new form of the data becomes the original.

When

In dealing with problems concerning whether a document should be considered as an original or a copy, one should consider the purpose for which a document is being offered first. Thereafter, the intent of the parties at the time the document was created should be examined. Finally, one should consider whether the form in which the document appears is the first real evidence of the data in a comprehensible fashion.

Rule 1001(4) This rule defines duplicate as any type of reproduction, regardless of the reason for which it was made, if it is produced by a process designed to insure an accurate reproduction of the original. The duplicate and the original are often produced at the same time, such as where carbon paper is employed. Where this occurs, the carbon is considered to be a duplicate original. Accordingly, it is not necessary for the parties to

have signed the carbon or have indicated their intention to treat it as an operative writing for it to be accorded duplicate status. The carbons are not copied from the originals, but are created with the original in one mechanical stroke.

Under this rule, what the parties intended to be the object of their actions is also a controlling factor.

ILLUSTRATION

If X types an agreement in Y's presence and keeps the ribbon copy for himself and sends the carbon to Y, the one he keeps for himself is the original and the one he gives Y is the duplicate original because they intend that both documents embody the essence of the agreement. On the other hand, where X individually types a letter and sends Y the ribbon copy and keeps the carbon for himself, the ribbon copy is the original and the carbon version is the copy.

As noted in the above example, the intent of the parties is important in determining whether a document qualifies as an original or duplicate. Where attorney X files a carbon copy of a pleading with the court and marks it "original", the document is the original irrespective of whether a ribbon copy is in existence. This is especially true inasmuch as ribbon copies may be produced at will through the use of special memory typewriters.

RULE 1002

REQUIREMENT OF ORIGINAL

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

ELEMENTS

A.

To prove the content of a writing, recording or photograph,

This rule codifies the best evidence rule by requiring the original to be produced where the contents of a writing is in dispute. It's an elementary principle of law that no evidence will be received from a party regarding the contents of a writing if it is not the best evidence he can produce. Before a party may introduce evidence, which by its character suggests the existence of better evidence, he must explain his inability to produce the better evidence.

The rule does not preclude the admission of testimony where the contents of a writing merely records events to which the testimony relates.

ILLUSTRATION

X observes an event and provides the government agent with a statement regarding what he had seen. X may testify at trial concerning the event inasmuch as the writing is a by-product of the best evidence, X's memory. Assume X hears Y testify at a Congressional hearing and at that time, Y committed perjury. X can be called to testify at Y's trial, inasmuch as, the statements alleged to be purjurious may be proved by any person who heard them, as well as, the reporter who recorded them.