ARTICLE X.

CONTENTS OF WRITINGS,

RECORDINGS, AND PHOTOGRAPHS

 

Rule 1001 Definitions. For purposes of this article the following definitions are applicable:

(1) "Writings and recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(3) An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(4) A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

(5) A "public record" means any writing, memorandum, entry, print, representation, report, book or paper, map or plan, or combination thereof, that is in the custody of any department or agency of government. [L 1980, c 164, pt of 1; am L 1992, c 191, 2(10)]

 

RULE 1001 COMMENTARY

 

This rule is identical with Fed. R. Evid. 1001, except that paragraph (5), defining "public records," is original and has no Fed. R. Evid. counterpart. Article X is concerned generally with the so-called "best evidence rule," which emerged in common law during the early part of the eighteenth century, see McCormick 231. The best evidence rule initially applied only to documentary evidence, but modern technology has introduced a wide variety of data collection and storage systems to which the rule is equally relevant. The definitions in this rule are designed to clarify terms that have been the subject of extensive judicial controversy, see McCormick 232.

Paragraph (1): This definition extends the traditional concept of "documents" to include not only "writings" but also such data systems as computers, photographic systems, and other technological developments. For this purpose, microfilm, microfiche, and similar photographic data storage processes are "recordings" rather than "photographs." See Fed. R. Evid. 1001(1), Advisory Committee's Note: "Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments."

Paragraph (2): This definition includes all photographic and videographic processes, including microphotographs, and medical and industrial x-rays. However, when such a process is used for recording and storage of letters, words, or numbers, it is a "recording," see paragraph (1) supra, rather than a "photograph."

Paragraph (3): What may be considered an "original" for evidentiary purposes is not always clear-cut, see McCormick 235. This definition avoids the problem of "the chronology of creation," McCormick, id., or the issue of which of two or more counterparts is the "original" by adopting a functional criterion. A writing or recording is determined to be "original" on the basis of the intention of the person who produced or issued it. By this standard, a carbon copy of a contract, receipt, letter, or other writing, if issued or dispatched as the primary operative communication, will be considered the "original."

Paragraph (4): The essential characteristic of a duplicate is its fidelity to the original; for this reason, manually produced copies are not duplicates within the meaning of this rule. Because the fidelity of a duplicate renders the possibility of error highly unlikely, the duplicate in most instances may be admitted into evidence in lieu of the original, see Rule 1003 infra.

Paragraph (5): This paragraph, which has no Fed. R. Evid. counterpart, supplies the operative definition of "public record" as that term is employed in Rule 1005 infra. It was adapted from Hawaii Rev. Stat. 92-50 (1976), which defines "public records" for public inspection purposes. The present definition is broad enough to include any document that is in the custody of a public agency.

 

RULE 1001 SUPPLEMENTAL COMMENTARY

 

The Act 191, Session Laws 1992 amendment added "sounds" to the definition of "writings and recordings," Rule 1001(1). The intent of this paragraph, as originally approved in 1980, was to extend the reach of the original document requirement, Rule 1002, to include not only documents but also the storage and output mechanisms of "computers, photographic systems, and other modern developments," see the original commentary. The 1992 amendment makes clear that sound recordings are included within the definition of "writings and recordings." The policy of the original document rule--to require the original so as to minimize fraud and mistake--applies equally to words and data stored in sound recordings.

 

 

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