711.7Testimony/Admission of Party [Rule 1007]
Key Concepts
- The original is not required to prove the contents of a writing, recording, or photograph if the party against whom it is offered admits that the secondary evidence at issue accurately reflects the original.
- To qualify under this rule, the admission must be made during testimony, in a deposition, or in writing.
The Basic Rule
Rule 1007 – Testimony or Written Admission of a Party
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Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original. |
Legal Overview
Rule 1007 excuses the requirement that the original must be used to prove the contents of a writing, recording, or photograph if the party against whom the evidence is being offered admits that the secondary evidence accurately reflects the contents of the original. G.S. 8C-1007. See generally State v. Aldridge, 67 N.C. App. 655 (1984) (not directly applying Rule 1007, but holding that when defendant admitted signing receipts for silver and gold and cashing the check made out to him, the best evidence rule did not require production of the originals and the court did not err by allowing introduction of “photostatic copies”); see also In re Helms, 55 N.C. App. 68 (1981) (“When the opposing party, however, admits that the documents shown him are correct copies of the original, the original need not be produced.”).
Application of this rule is limited to admissions made: (i) during testimony, (ii) in a deposition, or (iii) in writing. G.S. 8C-1007. Therefore, proof of an oral admission made by the opponent at some other time (such as testimony from an officer that the defendant acknowledged the accuracy of the secondary evidence during a custodial interview) is not sufficient to invoke this rule. See G.S. 8C-1007, Official Commentary. The official commentary explains that "[t]he rule clarifies North Carolina law by not allowing proof of contents by oral evidence of an oral admission.” Id. This limitation exists due to the substantial risk of inaccuracy if contents are proved by evidence of an oral admission of the party against whom the evidence is offered without accounting for the proponent’s failure to produce the original. Id.
Although an earlier, out-of-court acknowledgment cannot be used for Rule 1007 purposes, the rule does not preclude the use of that statement entirely. Therefore, the acknowledgement could still be admitted for other reasons and on other grounds (such as an admission of a party opponent). See G.S. 8C-1007, Official Commentary (“The limitation, of course, does not call for excluding evidence of an oral admission when nonproduction of the original has been accounted for and secondary evidence generally has become admissible.”) (internal quotations omitted).
Consider another rule
A prosecutor seeking to prove the contents of an original document through a photocopy or other secondary evidence cannot depend on the fact that the defendant will both (a) testify, and (b) acknowledge the accuracy of the secondary evidence on the stand. Thus, the prosecutor will usually be better served by relying on Rule 1003 (Admissibility of Duplicates) or Rule 1004 (Admissibility of Other Evidence of Contents) as support for admitting a duplicate or other evidence of contents.