711.1Definitions [Rule 1001]
- Rule 1001 defines what qualifies as a writing, recording, or photograph for purposes of rules that require the proponent of such evidence to produce the original or that permit the use of a duplicate.
- The “original” means: (i) the writing or recording itself; (ii) any counterpart intended as an original by the person who made it; (iii) both the prints and the negative of a photograph; and (iv) accurate printouts of computer data.
- A “duplicate” means: (i) a counterpart made from the same impression or matrix as the original; or (ii) an accurate copy made through photographic, chemical, mechanical, or comparable means.
The Basic Rule
Rule 1001 – Definitions
For the purposes of this Article the following definitions are applicable:
(1) Writings and Recordings. - "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. - "Photographs" include still photographs, x-ray films, video tapes, and motion pictures.
(3) Original. - 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) Duplicate. - 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.
G.S. 8C-1001. Under Rule 1002, “Requirement of Original” (more commonly known as the “best evidence” rule), the original of a writing, recording, or photograph is generally required in order to prove the contents of that material. Rule 1003, “Admissibility of duplicates,” sets forth the circumstances under which a duplicate copy may be used in place of the original. For more information on each of those rules, see the next two Evidence entries in this section: Requirement of Original [Rule 1002] and Admissibility of Duplicates [Rule 1003].
As explained below, Rule 1001 plays an integral role in the application of those other rules. Rule 1001 defines the types of evidence (writing, recordings, and photographs) covered by the requirements, and defines what qualifies as an original or duplicate that is admissible under Rules 1002-1008.
Writings, Recordings, and Photographs
Historically, the best evidence rule was limited to conventional writings and tabulations such as handwritten letters, typed documents, and financial ledgers. See G.S. 8C-1001, Official Commentary (noting that the rule was formerly applied primarily to “accumulations of data and expressions affecting legal relations set forth in words and figures,” and thus “the rule was one essentially related to writings”). The current version of the rule expands its reach to include more modern methods of storing data such as computer files, digital archives, and photo or video systems. See G.S. 8C-1001, Official Commentary. The same basic principles continue to apply because “the essential form which the information ultimately assumes for usable purposes is words and figures.” G.S. 8C-1001, Official Commentary.
Therefore, Rule 1001(1) now includes not only traditional writings and recordings such as “letters, words, sounds or numbers . . . set down by handwriting, typewriting, printing, photostating, [or] photocopying,” but also other forms of writing or recording that are “set down” by means of “magnetic impulse, mechanical or electronic recording, or other form of data compilation.” G.S. 8C-1001(1). See, e.g., In re J.L.H., 246 N.C. App. 188 (2016) (unpublished) (citing G.S. 8C-1001 and holding that “electronic writings such as text messages are ‘writings’ within the meaning of the original writing requirement”).
Similarly, Rule 1001(2)’s reference to photographs includes not only traditional still images and pictures, but also “x-ray films, video tapes, and motion pictures.” G.S. 8C-1101(2). See, e.g., State v. Bell, 251 N.C. App. 370 (2016) (unpublished) (audio and video recording made by an informant fell within the scope of Rule 1001); State v. Mitchell, 217 N.C. App. 401 (2011) (unpublished) (hand-held video recording of a segment of footage displayed on the monitor of a surveillance camera system was covered by Rule 1001).
Originals and Duplicates
As noted above, Rules 1002 and 1003 govern when the contents of a writing, recording, or photograph must be proved through production of the original item or when a duplicate of the item may be admitted. Rule 1001 defines what those two terms, “original” and “duplicate,” mean.
Under G.S. 8C-1001(3), an “original” means any of the following:
- The writing or recording itself;
- A counterpart (that is, a copy) of a writing or recording intended to have the same effect as an original by the person making it;
- An original photograph, which includes the negative of the photograph and any prints made from that negative; and
- Any printout or “other output readable by sight” that accurately reflects the data stored on a computer or similar device.
G.S. 8C-1001(3). See G.S. 8C-1001, Official Commentary (“In most instances, what is an original will be self-evident and further refinement will be unnecessary. However, in some instances particularized definition is required. A carbon copy of a contract executed in duplicate becomes an original, as does a sales ticket carbon copy given to a customer. While strictly speaking the original of a photograph might be thought to be only the negative, practicality and common usage require that any print from the negative be regarded as an original. Similarly, practicality and usage confer the status of original upon any computer printout.”); In re J.L.H., 246 N.C. App. 188 (2016) (unpublished) (citing Rule 1001(3) and holding that where a witness’s testimony addressed the content of a text message, the best evidence rule dictated that the content had to be introduced through a properly authenticated text message or “similar physical manifestation” of the message).
Under G.S. 8C-1001(4), a “duplicate” means either of the following:
- A counterpart made from the same impression or matrix as the original; or
- A copy created by any of the following means:
- Photographic reproduction, including enlargements or miniatures
- Mechanical or electronic re-recording;
- Chemical reproduction; or
- Other equivalent techniques that accurately reproduce the original.
G.S. 8C-1001(4). See G.S. 8C-1001, Official Commentary (“The definition describes ‘copies’ produced by methods possessing an accuracy which virtually eliminates the possibility of error. . . . . Copies subsequently produced manually, whether handwritten or typed, are not within the definition. It should be noted that what is an original for some purposes may be a duplicate for others. Thus a bank’s microfilm record of checks cleared is the original as a record. However, a print offered as a copy of a check whose contents are in controversy is a duplicate.”); Kilian v. Kilian, 175 N.C. App. 420 (2006) (unpublished) (citing Rule 1001(4) and recognizing that “a ‘duplicate’ includes a photocopy”); see also State v. Williams, 232 N.C. App. 152 (2014) (holding as a matter of first impression that "the act of downloading an image from the Internet constitutes a duplication" in the context of defining offense elements under G.S. 14-190.7).