Likewise, where a writing merely memorializes an event, the event may be the subject of oral testimony.

ILLUSTRATION

X gives Y a sum of cash as full payment for a debt. This fact is reduced to writing and acknowledged by X and Y. Y later sues X for non-payment of the debt. X seeks to testify that he paid Y and further states that the event was reduced to writing although he no longer has a copy of the receipt. Y seeks to exclude the testimony on the ground that the best evidence of payment is the receipt.

In the above scenario, both the testimony of X that he paid Y and the receipt would be competent evidence. The loss of the writing does not operate to exclude the testimony of an event perceived and participated in by the witness. Where the existance of a document and not its contents is in issue, the rule does not apply and oral testimony may be admitted in lieu of the document.

ILLUSTRATION

Assume at X's gambling trial, the government seeks to introduce evidence through Y that X had in his possession what appeared to be number slips on a particular day. The witness should be allowed to testify about what he saw, which exists apart from the contents of the slips of paper. When the government seeks to show that they were in fact number slips, the papers should be produced, inasmuch as, only their contents will establish them to be gambling paraphanalia.

RULE 1003

ADMISSIBILITY OF DUPLICATES

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

ELEMENTS

1.

A. A duplicate is admissible to the same extent as an original unless, A genuine question is raised as to the authenticity of the original, or

COMMENTS

2. Under the Circumstances, it would be unfair to admit the dupli

cate in lieu of the original.

This rule provides for the substitution of duplicates for the original where no question exists as to authenticity of the original and it would not be unfair under the circumstances to admit the duplicate in lieu of the original. For evidentiary purposes, duplicates and originals are interchangeable under the operation of this rule. Therefore, where duplicate originals are involved, only the question of authenticity bars the admission of the

document.

One problem often surfaces where an original and a duplicate are prepared and subsequently changes are made on one of the two documents, which are not reflected in the other. Where this occurs, for the duplicate to be substituted for the original, the duplicate must have been made after the original assumed its final form. Where the original is altered, both the original and

the unaltered duplicate should be introduced into evidence along with testimony as to the terms of the original.

The duplicate is inadmissible, if the original would not have been admissible. Where the duplicate is of poor quality or may be misleading through its lack of clarity, it should be excluded unless it is the only evidence readily available. In such a circumstance, the court should determine whether its probative value outweighs any reason to exclude it.

The duplicate may be excluded where under the attending curcumstances, it would be unfair to admit the document. While a list of circumstances under which a document should be excluded under this rule would be difficult to catalog, it would be fair to suggest that the rule would be inoperative where the duplicate reveals irregularities within its four corners. The reason for excluding this evidence is that these irregularities may go to the very integrity of the document and thus may restrict the ability of a party to rebut it. Additionally, such a document should be excluded where the actions of the proponent contributed to the inability of the opposing party to resist or respond to it.

The rule should operate where no genuine issue exists as to authenticity and no other reason or circumstance exists for requiring the original.

RULE 1004

ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

(2) Original not obtainable. Nor original can be obtained by any available judcial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

ELEMENTS

A. The original is not required, other evidence of contents of writing,

2. Original not obtainable through judicial process or procedure.

3. Original in possession of opposing party, and

4.

b. That the proponent desires to proffer the contents of the

writings, and

c. Opposing party does not produce original at hearing.

The writing, recording or photograph is not related to controlling issue.

COMMENT

This rule is a codification of the old common law rule allowing secondary evidence to substituted where the original is unavailable.

Under this rule, there is no degree of secondary evidence and a party may introduce any class of evidence as a substitute. It is the view of many commentators that a party will always seek to produce the best evidence available and consequently, the failure to provide rules governing secondary evidence may be overlooked. The defects of any secondary evidence will go to its weight, not to its admissibility.

Rule 1004(1)

This rule provides for the admission of secondary evidence, if it is established that the original of that evidence has been lost or destroyed. Although the rule does not contain such a requirement, the proponent of the secondary evidence should offer evidence that he has made a diligent search for the best evidence without success. Without this showing, a party cannot establish that the evidence is truly lost.

Where the loss or destruction of the original evidence was procured through bad faith by the proponent, the secondary evidence should be excluded. The fact that the original was destroyed, indicates a basis for suspicion and the law is wary of one who voluntarily deprives himself of the best evidence.

Where a party destroys the original, he must satisfy the court of the absence of fraud in the destruction of the evidence and to demonstrate that the destruction was by mistake or done in the ordinary course of business. Where a document is lost, the court must first find, as a preliminary matter, the existence of the original document. Thereafter, the proponent must establish the loss and contents of the document. Commentators disagree as to