711.8Function of Court/Jury [Rule 1008]
- The court decides preliminary matters affecting the admissibility of secondary evidence of contents of an original, such as whether the proponent has sufficiently demonstrated that the original is lost or cannot be obtained.
- The trier of fact decides the substantive issues related to the secondary evidence, such as whether the secondary evidence is an accurate reflection of the contents of the original.
The Basic Rule
Rule 1008 – Function of Court and Jury
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104.
However, when an issue is raised
(a) whether the asserted writing ever existed, or
(b) whether another writing, recording, or photograph produced at the trial is the original, or
(c) whether other evidence of contents correctly reflects the contents,
the issue is for the trier of fact to determine as in the case of other issues of fact.
G.S. 8C-1008 (reformatted for clarity).
The applicability of several other rules of evidence addressing the production and use of the “original” to prove the contents of a writing, recording, or photograph depend upon the determination of a related question, such as whether the original has been “lost or destroyed” or whether the proffered secondary evidence accurately expresses the contents of the original. The purpose of Rule 1008 is to clarify which of those determinations are to be made by the judge and which are to be made by the trier of fact. See G.S. 8C-1008, Official Commentary (“Rule 1008 follows the division of function between the court and the jury with respect to competency and conditional relevancy”).
Rule 1008 is rarely mentioned in North Carolina case law, but a handful of cases interpreting the nearly identical federal rule have generally expressed the same reasoning and interpretation found in the Official Commentary to the North Carolina rule. See, e.g., Remington Arms Co. v. Liberty Mutual Ins. Co., 810 F. Supp. 1420 (D. De. 1992) (“Rule 1008 specifically addresses which requirements of Rules 1002 and 1004 are to be apportioned to the court and which are to be apportioned to the finder of fact.”); Tinley v. Poly-Triplex Technologies, Inc., 79 Fed. R. Evid. Serv. 82 (D. Co. 2009) (unpublished) (“Pursuant to Rule 1008 […] the court would typically resolve any factual disputes concerning whether a ‘genuine question is raised as to the authenticity of the original’ under Rule 1003, or whether the ‘originals are lost or have been destroyed’ under Rule 1004,” but more substantive questions such as “whether the asserted writing ever existed” are left for the jury to decide).
Judge Determines Preliminary Matters
Under Rule 1008, “most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104.” G.S. 8C-1008, Official Commentary (internal quotations omitted). See generally G.S. 8C-104(a), (b). For example, “the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004” are matters to be decided by the judge. G.S. 8C-1008, Official Commentary (internal quotations omitted).
For more information about the judge’s role in determining preliminary questions of fact related to general admissibility, conditional relevancy, and the proper procedure for conducting a hearing on the admissibility of evidence, see the related Evidence entry on Preliminary Questions [Rule 104].
Trier of Fact Decides Substantive Issues and Weight
If the judge determines that the preliminary conditions have been satisfied and admits secondary evidence of the contents of a writing, recording, or photograph, the trier of fact then resolves any substantive issues raised by that evidence. “[Q]uestions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed,” in which case “the latter portion of the instant rule is designed to insure treatment of these situations as raising jury questions[.]” G.S. 8C-1008, Official Commentary (internal quotations omitted).
Rule 1008 provides that the trier of fact determines the following matters when an issue is raised:
- Whether an asserted original writing ever existed (such as when the state offers secondary evidence of a writing through the testimony of a witness who saw the writing, but the defendant contends that no such writing was ever made);
- Whether a different writing, recording, or photograph produced at trial is actually the original (such as when the state offers a video recording of an event, but the defendant contends that the state’s recording has been an altered and that a different version offered by the defendant is the true original); or
- Whether other evidence of contents correctly reflects the contents of the original (such as when the state has offered testimony describing a series of photographs observed in defendant’s home, but the defendant contends that the description is not accurate).
G.S. 8C-1008. In these situations, the trier of fact determines the issues “as in the case of other issues of fact.” G.S. 8C-1008. In other words, the trier of fact decides whether the original writing existed, which of the two video recordings is the true original, or whether the description of the photographs is accurate. Although the jury is ultimately responsible for resolving these types of factual questions, it remains “subject to the control exercised generally by the judge over jury determinations.” G.S. 8C-1008, Official Commentary (internal quotations omitted) (decision is not one for “uncontrolled discretion” by the jury).