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 statute. [L 1980, c 164, pt of 1]

 

RULE 1002 COMMENTARY

 

This rule is identical with Fed. R. Evid. 1002 except that "statute" is substituted for "Act of Congress." Rule 1002 states the so-called "best evidence rule," requiring the production of the original document whenever the proponent seeks to prove the document's contents. See, e.g., Ripley v. Kapiolani Estate, 22 H. 86 (1914). The present rule applies this requirement to writings, recordings, and photographs as those terms are defined in Rule 1001.

Note that this rule applies only when the effort is to "prove the content of a writing." The Advisory Committee's Note to Fed. R. Evid. 1002 addresses this point: "Thus an event may be proved by nondocumentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies. For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered." Cf. Brown v. Equitable Life Assurance Soc'y, 14 H. 80 (1902).

 

Case Notes

 

Although this rule would ordinarily have precluded the admission of testimony about cell phone text messages because such testimony was not an "original", the testimony was admissible because rule 1004(1) applied to the text messages such that other evidence could be admitted to prove the content of the text messages; as complainant no longer had the actual text messages because complainant no longer had the cell phone or cell phone service, for purposes of rule 1004(1), the original text messages were "lost or destroyed". 117 H. 127, 176 P.3d 885 (2008).

 

 

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