Rule 1004 Admissibility of other evidence of contents. The original or a duplicate 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; or
(2) Original not obtainable. No original can be obtained by available judicial 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, the party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and the party 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. [L 1980, c 164, pt of §1; gen ch 1985]
RULE 1004 COMMENTARY
This rule is similar to Fed. R. Evid. 1004, except that the words "or a duplicate" are added to the first sentence of this rule. The change is not substantive. The rule specifies the exceptions to Rule 1002, and effects no change in existing law, see Chu Chung v. Jellings, 30 H. 784 (1929) (destroyed); Rex v. Lenehan, 3 H. 714 (1876) (possession of opponent).
As the Advisory Committee's Note to Fed. R. Evid. 1004 points out, the "rule recognizes no 'degrees' of secondary evidence." Thus, when this rule is satisfied, there is no preference for one form of secondary evidence over another.
Although rule 1002 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 paragraph (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 paragraph (1), the original text messages were "lost or destroyed". 117 H. 127, 176 P.3d 885 (2008).
Last modified: October 27, 2016