711.4Other Evidence of Contents [Rule 1004]
- The original is required to prove the contents of a writing, recording, or photograph unless an exception applies.
- Rule 1004 provides four such exceptions, allowing “other evidence” of the contents if the original is: (i) lost or destroyed; (ii) not obtainable; (iii) in possession of the opponent; or (iv) a collateral matter.
The Basic Rule
Rule 1004 – Admissibility of Other Evidence of Contents
The original 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 any available judicial process or procedure; or
(3) Original in Possession of Opponent. - At a time when an original was under the control of a party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he 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.
As discussed in the earlier entry on "Requirement of Original," Rule 1002 generally bars a party from using secondary evidence to prove the contents of an original writing, recording, or photograph. G.S. 8C-1002. However, Rule 1004 sets out four circumstances in which the original is not required to prove the contents of a writing, recording, or photograph. G.S. 8C-1004. If one of these four circumstances applies, secondary evidence of the contents of the original is admissible. Id. All such secondary evidence is considered to be on equal footing under the rule. For example, testimony from a witness describing the contents of a letter is neither more nor less competent than a document purported to be an unsigned draft of the same letter. See G.S. 8C-1004, Official Commentary (“The rule recognizes no ‘degrees’ of secondary evidence.”).
The four circumstances in which the original is not required and other evidence of the contents is admissible are summarized below.
Original Lost or Destroyed
Secondary evidence is admissible when all originals have been lost or destroyed and that loss or destruction was not due to an act committed in bad faith by the proponent of the evidence. G.S. 8C-1004(1); G.S. 8C-1004, Official Commentary; see, e.g., State v. Thorne, 173 N.C. App. 393 (2005) (no error in allowing officer to describe contents of bank surveillance video of a robbery after the original video was accidentally lost; explaining that the defendant did not assert that the state destroyed or lost the videotape in bad faith); State v. Jarrell, 133 N.C. App. 264 (1999) (state’s witness was properly allowed to testify about the contents of a letter written to her by defendant which the witness destroyed, where the defendant made no showing that the witness destroyed the letter in bad faith); State v. Edwards, 286 N.C. 162 (1974) (where original search warrant was lost, trial court properly relied on a “photostatic copy” to evaluate validity of original warrant); see also State v. Mitchell, 217 N.C. App. 401 (2011) (unpublished) (secondary recording of a surveillance video, made by an officer on scene who used a handheld camera to film what was being displayed on a security monitor, was admissible under Rule 1004 after the original video was subsequently taped over by the store’s automated system); State v. Herron, 212 N.C. App. 236 (2011) (unpublished) (under Rule 1004, state was allowed to introduce photocopies of specially marked $20 bills that were used in a drug buy operation, since the officers were not acting in bad faith when they followed standard procedure and released the bills back into the city’s special fund prior to trial).
Before offering secondary evidence to prove the contents of a writing, recording, or photograph, the proponent of the evidence must exercise due diligence and make a reasonable effort to procure the original. See State v. Anderson, 9 N.C. App. 146 (1970) (decided prior to the adoption of Rule 1004, but holding that a showing of due diligence to produce an original which has been lost or destroyed is sufficient foundation for the admission of secondary evidence; as a general rule, such evidence will be excluded absent a showing of any effort to locate or procure the original); see also State v. Barnette, 233 N.C. App. 599 (2014) (unpublished) (citing Rule 1004 and allowing witness testimony about the content of voicemails which were saved on a phone that the victim lost and could not find; noting that testimony established that the phone could not be located despite reasonable efforts to find it and that when that testimony was coupled with the defendant’s failure to assert that the voice mails were destroyed or lost in bad faith, the trial court had sufficient grounds to allow other evidence of the voice mails' contents).
Original Not Obtainable
If a third party has possession of the original writing, recording, or photograph and the proponent of the evidence has not been able to obtain it through judicial process, such as issuance of a subpoena, the proponent may prove its contents with secondary evidence. G.S. 8C-1004(2); G.S. 8C-1004, Official Commentary. See generally Investors Title Co. v. Herzig, 330 N.C. 681 (1992) (after the plaintiff in a civil case took “extensive, albeit unsuccessful, measures to secure the presence of [the defendant] who was believed to be in sole possession of the original of the Trust Agreement,” the trial court correctly concluded that the original could not be obtained by any available judicial process or procedure, “thereby placing the duplicate within an exception to the Best Evidence Rule and allowing its admission into evidence”).
To fall within the scope of Rule 1004(2), the proponent of the evidence must demonstrate that he or she could not obtain the original through legal process. Merely showing that obtaining it would involve “extreme expense and inconvenience” does not constitute “unavailability” under the rule. G.S. 8C-1004, Official Commentary.
Original in Possession of Opponent
The contents of a writing, recording, or photograph may be proven with secondary evidence “if the opponent who is in possession of the original fails, after notice, to produce it at the trial.” G.S. 8C-1004, Official Commentary (explaining the exception found in G.S. 8C-1004(3)). The opposing party may be put on notice that the “contents would be a subject of proof at the hearing […] by the pleadings or otherwise.” G.S. 8C-1004(3). The rationale for this exception is that “a party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made.” Id. (internal quotations omitted). Additionally, the opposing party “can ward off secondary evidence by offering the original.” Id. (internal quotations omitted).
See generally Investors Title Co. v. Herzig, 330 N.C. 681 (1992) (“Here, the original document is unavailable. The trial court admitted the duplicate because it found the original was lost, destroyed, or in the exclusive possession of [the defendant].”); Taylor v. Volvo North America Corp., 339 N.C. 238, n.1 (1994) (noting that “the ‘best evidence rule’ would normally require production of the written warranty since the plaintiff is seeking to prove the content of a writing” but “Rule 1004 would probably permit plaintiff to establish the terms of the warranty through other means” in this case since “the written warranty, which was contained in the owner's manual, was in the car when it was repossessed”).
Finally, an original is not required to prove the contents of writing, recording, or photograph if the item is not closely related to a controlling issue in the case. G.S. 8C-1004(4). Although there is no precise way to define what qualifies as a collateral matter, this rule recognizes that “situations arise in which no good purpose is served by production of the original.” G.S. 8C-1004, Official Commentary (internal quotations omitted). See State v. Clark, 324 N.C. 146 (1989) (citing Rule 1004 and holding it was not error to admit 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”).