Alaska R. Evid. 1001 commentary

Rule 1001 follows the Federal Rule verbatim, as did

virtually all other State provisions drafted after the Federal

Rule was adopted. But see Maine Rules 1001 & 1003. The

Advisory Committee’s Note, which accompanied the Federal

Rule, comprises the rest of this comment with minor changes.

In an earlier day, when discovery and other related

procedures were strictly limited, the misleadingly named “best

evidence” rule afforded substantial guarantees against

inaccuracies and fraud by its insistence upon production of

original documents. The great enlargement of the scope of

discovery and related procedures in recent times has

measurably reduced the need for the rule. Nevertheless

important areas of usefulness persist: discovery of documents

outside the jurisdiction may require substantial outlay of time

and money; the unanticipated document may not practicably be

discoverable; criminal cases have built-in limitations on

discovery. Cleary and Strong, The Best Evidence Rule: An

Evaluation in Context, 51 Iowa L. Rev. 825 (1966).

(1) Writings and Recordings. Traditionally the rule

requiring the original centered upon accumulations of data and

expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to

writings. Present day techniques have expanded methods of

storing data, yet the essential form which the information

ultimately assumes for usable purposes is words and figures.

Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other

modern developments.

(2) Photographs. This subdivision is self-explanatory.

(3) Original. In most instances, what is an original will be

self-evident and further refinement will be unnecessary.

However, in some instances particularized definition is

required. A carbon copy of a contract executed in duplicate

becomes an original, as does a sales ticket carbon copy given

to a customer. While strictly speaking the original of a photograph might be thought to be only the negative, practicality

and common usage require that any unretouched print from the

negative be regarded as an original. Similarly, practicality and

usage confer the status of original upon any computer printout.

Transport Indemnity Co. v. Seib, 132 N.W.2d 871 (Neb. 1965).

However, a printout that summarizes the raw data stored in the

computer without listing all the data may be treated under Rule

1006. Distinguishing summaries from raw data may present

difficulties for litigants and courts unschooled in computers,

but reliance upon Rule 1006 in close cases should ensure

fairness and impose no undue burdens on parties utilizing

computers.

(4) Duplicate. The definition describes “copies” produced

by methods possessing an accuracy which virtually eliminates

the possibility of error. Copies thus produced are given the

status of originals in large measure by Rule 1003, infra. Copies

subsequently produced manually, whether handwritten or

typed, are not within the definition. It should be noted that

what is an original for some purposes may be a duplicate for

others. Thus a bank’s microfilm record of checks cleared is the

original as a record. However, a print offered as a copy of a

check whose contents are in controversy is a duplicate. This

result substantially comports with Title 40 of the Alaska Code

governing Public Records.