711.2Requirement of Original [Rule 1002]
- Under the “best evidence” rule, the original of a writing, recording, or photograph is generally required in order to prove the contents of that item.
- The original is not required if the proponent is not attempting to prove the contents of the item, or if secondary evidence is expressly permitted by another rule or statute.
- The best evidence rule does not apply when the contents of the item are not in dispute or when the item is a collateral matter in the case.
The Basic Rule
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.
G.S. 8C-1002. Rule 1002 codifies the historical “best evidence” rule regarding written documents, but it also expands the rule to “include explicitly writings, recordings, and photographs, as defined in Rule 1001(1) and (2).” G.S. 8C-1002, Official Commentary. The rule generally requires that the original be produced in order to prove the contents of such evidence, but “the requirement for the original is overridden in many instances by other rules such as Rule 1003, which allows duplicates to be admitted.” G.S. 8C-1002, Official Commentary.
Unless it is permitted by one of the limitations or exceptions discussed below, Rule 1002 generally bars a party from using secondary evidence to prove the contents of a writing, recording, or photograph if the original of that item is available. G.S. 8C-1002. For example, a witness ordinarily would not be permitted to describe what he or she saw on a videotape if the videotape is available and could be shown to the jury. See generally State v. Haas, 202 N.C. App. 345 (2010) (stating that Rule 1002 “generally requires that secondary evidence offered to prove the contents of a recording be excluded whenever the original is available.”); State v. York, 347 N.C. 79 (1997) (“In the present case, the tape recordings themselves were available, were introduced by defendant and were played for the jury. As such, the trial court properly excluded introduction of the transcripts under the best evidence rule.”); State v. Walker, 343 N.C. 216 (1996) (concluding that the trial court did not err in requiring that the writings be admitted into evidence before the witness could read their contents aloud); State v. Boone, 302 N.C. 561 (1981) (trial court properly excluded testimony by defendant's father concerning the contents of a medical discharge letter that was relevant to defendant's insanity defense, where the original letter was available and later admitted into evidence).
Limitations on Applicability
Despite its broad scope, there are many situations in which Rule 1002 does not obligate the proponent of the evidence to produce the original.
Only Applies to Writings, Recordings, and Photographs
By its terms, Rule 1002 only applies to writings, recordings, and photographs. Therefore, the state is not required to produce the “original” for the many other types of evidence that may be used in a criminal trial, such as stolen property, drugs, forensic samples, or firearms. Instead, the prosecutor has discretion to choose an appropriate method of proof (such as by introducing a photograph of the item or eliciting witness testimony about it) in accordance with other rules of evidence. See, e.g., State v. Powell, 61 N.C. App. 124 (1983) (in prosecution for felony larceny of tractors, state was not required by best evidence rule to offer the actual tractors into evidence to prove what serial numbers on tractors' identification plates were; witness testimony as to the serial numbers was competent and sufficient); State v. Allen, 45 N.C. App. 417 (1980) (best evidence rule was not violated where state could have introduced the television sets in question at defendant's trial for receiving stolen goods, but chose not to do so); see also State v. Wall, 149 N.C. App. 233 (2002) (unpublished) (“[T]he State offered the oral testimony of Blanton to establish that the lawnmower seized from defendant was the lawnmower taken from the church's shed. We hold that the State is not required to introduce the stolen lawnmower into evidence and the testimony of Blanton was competent to establish the identity of the lawnmower. The best evidence rule has no application to the facts of this case[.]”). See generally G.S. 15-11.1(a) (“Notwithstanding any other provision of law, photographs or other identification or analyses made of the property may be introduced at the time of the trial provided that the court determines that the introduction of such substitute evidence is not likely to substantially prejudice the rights of the defendant in the criminal trial.”).
Not Offered to Prove Contents
Rule 1002 only applies if the proponent of the evidence is attempting “to prove the content” of the writing, recording, or photograph. G.S. 8C-1002. Therefore, if the evidence is only being offered or used for another purpose, such as refreshing a witness’s recollection under Rule 612 or to show a witness’s knowledge or awareness of the item, the original is not required. See, e.g., State v. Mlo, 335 N.C. 353 (1994) (best evidence rule did not apply to a written document that was only used to refresh witness’s memory and was not offered into evidence); State v. Cobbins, 66 N.C. App. 616 (1984) (best evidence rule did not apply when document was used merely to trigger witness' memory and was not offered into evidence); State v. Clark, 324 N.C. 146 (1989) (best evidence rule did not apply to exclude testimony of a witness about the contents of a life insurance policy taken out on victim when it was not offered to prove the actual content and terms of the policy, but simply to show defendant’s knowledge that there was a policy); see also State v. Gallagher, 313 N.C. 132 (1985) (no error in allowing introduction of copies of phone bills without establishing accuracy of the copies since they were only offered for the purpose of corroborating witness’s testimony); State v. Monroe, 27 N.C. App. 405 (1975) (where a waiver of rights form signed by the defendant was lost, the best evidence rule did not preclude introduction of oral testimony to establish that defendant had in fact signed it, since the issue was only whether defendant knowingly and voluntarily waived his rights and not the contents of the waiver itself).
Contents Not Disputed
The original of a writing, recording, or photograph likewise is not required when there is no genuine dispute about its contents. See, e.g., State v. Haas, 202 N.C. App. 345 (2010) (no error in admitting written transcript of former testimony, even though an original recording of the testimony was available, where defendant had been provided with the recording and could have offered it himself, and there was no dispute as to the accuracy of the transcription); State v. Martinez, 149 N.C. App. 553 (2002) (agent’s testimony summarizing an audio recording between co-defendants did not violate best evidence rule where contents of the conversation were not disputed by defendant, agent had actually listened to conversation and was competent to testify about it, and defendant never asked to have the tape played for the jury); see also State v. Howard, 215 N.C. App. 318 (2011) (no plain error in admission of photocopies of purchase receipts and identification card where, if defendant had timely objected, the state could have either produced the originals or authenticated the copies and argued for their admission as duplicates); State v. Rourke, 143 N.C. App. 672 (2001) (state was not required to offer a more reliable presentation of a tape recording offered in a murder trial that had “clicking” noises on it, where defendant did not request original tape at trial, and did not present any support for suggestion that the clicks were not an accurate copy of noises from original tape).
Written transcript of a recording?
In cases where the state’s evidence includes an audio or video recording (such as a taped interview, an undercover drug buy, or a dash cam video), some prosecutors choose to have a written transcript of the recording prepared to assist the jury. The defense may object on the grounds that the transcript violates the best evidence rule because the original recording “speaks for itself.” See, e.g., State v. York, 347 N.C. 79 (1997).
However, several more recent cases addressing this issue have held that it does not violate the best evidence rule to admit a transcript, as long as: (i) the original recording is also introduced into evidence (or is at least available for comparison); and (ii) the transcript accurately reflects the contents of the recording. The rationale is that under those circumstances the contents of the original are not in dispute and the transcript is not being relied upon as proof of the contents, so the best evidence rule does not bar its use. See, e.g., State v. Haas, 202 N.C. App. 345 (2010); State v. Roberson, 249 N.C. App. 465 (2016) (unpublished); State v. Patel, 242 N.C. App. 679 (2015) (unpublished). For further discussion, see Jonathan Holbrook, "Is a Written Transcript the “Best Evidence” of a Recording?," N.C. Criminal Law Blog, Sept. 10, 2019.
Allowed by Other Rules
Rule 1002’s requirement that the original must be used to prove the contents of a writing, recording, or photograph is limited by a broad catch-all provision: “except as otherwise provided in these rules or by statute.” G.S. 8C-1002. Several other rules of evidence modify or excuse the proponent’s obligation to use the original item. For more information, see the following related Evidence entries:
- Admissibility of Duplicates [Rule 1003]
- Admissibility of Other Evidence of Contents [Rule 1004]
- Public Records [Rule 1005]
- Summaries [Rule 1006]
- Testimony or Written Admission of Party [Rule 1007]
- Function of Court and Jury [Rule 1008]
The proponent of a writing, recording or photograph is not required to produce the original if it is only a “collateral matter” in the case. See G.S. 8C-1002; 8C-1004(4) (other evidence of the contents of writing, recording or photograph is allowed for “collateral matters”). In other words, secondary evidence (such as a witness’s testimony describing what he or she saw, heard, or read) may be offered to prove the contents of an item that only bears on a minor issue in the case. See, e.g., State v. Johnston, 123 N.C. App. 292 (1996) (best evidence rule was not violated by allowing officer to testify about contents of videos, because “the content of the movies available at the store is not at issue in this case” and they were only “a collateral matter tending to show defendant's knowledge circumstantially”), quoting State v. Mills, 39 N.C. App. 47 (1978) (“The rule does not apply ... when [the] contents are not in question or when they are only ‘collateral’ to the issues in the case.”); State v. Clark, 324 N.C. 146 (1989) (citing Rule 1004 and holding it was not error to admit witness testimony describing the contents of a life insurance policy because the “testimony as to the policy was collateral” since it was “offered not to prove contents or terms, but simply to show defendant's knowledge that the policy existed”).
Finally, even if secondary evidence of the contents of a writing, recording, or photograph is erroneously admitted in violation of Rule 1002, the error may be considered harmless or nonprejudicial if the original is subsequently admitted or other competent evidence is offered that establishes the same facts. See, e.g., State v. Williamson, 146 N.C. App. 325 (2001) (any violation of best evidence rule by allowing witness in sex offense case to testify about contents of nude photographs of victim she saw in defendant’s bedroom was harmless, even though state never offered original photographs into evidence, where victim had already testified without objection that defendant took nude photographs of her and described the contents of the photographs that she showed to the witness in defendant’s bedroom); State v. Jones, 98 N.C. App. 342 (1990) (no prejudice occurred in narcotics prosecution despite violation of best evidence rule when undercover agent testified about the contents of a note he received from his supervisor before the note was placed into evidence); State v. Clark, 324 N.C. 146 (1989) (any error in admitting, over best evidence rule objection, testimony by defendant's friend concerning contents of life insurance policy issued to the victim was harmless since the actual contents of the policies were put before the jury through the testimony of insurance agency personnel); State v. Wingard, 317 N.C. 590 (1986) (best evidence rule was not violated by allowing notes written by defendant to victim to be read to jury, where notes were thereafter introduced into evidence and examined by jurors).