711.5Public Records [Rule 1005]
- Since public records are commonly held in the exclusive custody of the office or agency that created them, the original record will rarely be available for use in court.
- Rule 1005 modifies the general rules for offering secondary evidence of a record’s content by establishing a hierarchy of preference among types of secondary evidence.
- The contents of public records may be proved by a certified copy pursuant to Rule 902, or a copy certified to be correct by a witness who compared it to the original. If, after a reasonably diligent effort, the proponent cannot obtain such a copy, other evidence of the contents may be offered.
The Basic Rule
Rule 1005 – Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.
If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
G.S. 8C-1005 (reformatted for clarity).
Purpose Behind Rule 1005
Public records pose a unique evidentiary challenge because ordinarily there is only one “original” for documents such as death certificates or court files, and “removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian.” G.S. 8C-1005, Official Commentary (internal quotations omitted). “As a consequence, judicial decisions and statutes commonly hold that no explanation need be given for failure to produce the original of a public record.” Id. (internal quotations omitted).
Normally, if the original of a document cannot be produced for use at trial, it qualifies as “not obtainable” pursuant to Rule 1004, making secondary evidence of its contents admissible. See G.S. 8C-1004(2) (“Original Not Obtainable”). Additionally, Rule 1004 usually “recognizes no ‘degrees’ of secondary evidence.” G.S. 8C-1004, Official Commentary. But if those rules were applied to public records, “this blanket dispensation from producing or accounting for the original would open the door to the introduction of every kind of secondary evidence of contents of public records[.]” G.S. 8C-1005, Official Commentary. Under such a rule, testimony from a witness who simply looked at a public record would be considered equally as competent and admissible as a certified photocopy of the record for the purpose of proving its contents.
Rule 1005 addresses this issue by establishing a hierarchy among different types of secondary evidence that may be used to prove the contents of public records. The official commentary to the rule characterizes the recognition of degrees of secondary evidence as “an appropriate quid pro quo for not applying the requirement of producing the original.” G.S. 8C-1005, Official Commentary (internal quotations omitted).
What Rule 1005 Authorizes and Requires
Rule 1005 sets forth two ways to prove the contents of a public record without producing the original.
- Certified Copy
First, the contents may be proved through a “copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.” G.S. 8C-1005. See, e.g., State v. Gaither, 161 N.C. App. 96 (2003) (trial court properly admitted copy of prior judgment and commitment order pursuant to Rule 1005 where state’s witness “testified that the document was an exact copy of the original commitment order, that he observed the original document as it was pulled from the Sampson County records, and witnessed the copy produced and certified by the Clerk of Court”).
For more information and additional case law regarding authenticating and admitting certified copies of public records, see the related Evidence entry Self-Authentication [Rule 902].
- Other Evidence
Alternatively, “other evidence of the contents” of a public record (such as testimony from a witness who viewed the record) may be used, but only if the proponent first demonstrates that a certified copy of the record “cannot be obtained by the exercise of reasonable diligence.” G.S. 8C-1005. See generally State v. Waycaster, 260 N.C. App. 684 (2018), J. Murphy, concurring in part and dissenting in part (“As to the degree of diligence required under Rule 1005, reasonable diligence […] is not easy to define, as each case depends much on its peculiar circumstances [….] But it seems that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest and which were accessible to him [….]”) (internal quotations omitted), aff'd, 375 N.C. 232 (2020).
What about ACIS printouts?
In several recent decisions, the appellate courts have held that Rule 1005 does not obligate the state to show that it exercised reasonable diligence to try to obtain a certified copy of a judgment before offering a certified ACIS printout as other evidence to prove the defendant’s prior convictions in an habitual felon prosecution. See State v. Waycaster, 375 N.C. 232 (2020); State v. Edgerton, 266 N.C. App. 521 (2019); see also State v. Aultman, 244 N.C. App. 777 (2016) (unpublished) (similar ruling, cited by Waycaster). The courts reasoned that the ACIS printouts were not being offered to prove the contents of the original court documents, but rather as an alternative method of proving the underlying fact of the convictions themselves; therefore, “because the evidence tendered was not proof of the contents of another document, the best evidence rule did not bar the admission of the printout.” Edgerton, 832 S.E.2d at 258.
These cases were decided in the context of proving habitual felon status under G.S. 14-7.4, a statute that “allows, rather than requires, that the proof tendered be a certified copy of the court record of the prior conviction.” Id. Therefore, they do not establish that an ACIS printout may always be used in place of a certified copy of a judgment. Nevertheless, their logic and reasoning may apply in other contexts where the state seeks to prove the underlying fact of a prior conviction.