Alaska R. Evid. 1002 commentary

This rule, modeled after Federal Rule 1002, is the familiar

part of the Best Evidence Rule requiring the production of the

original to prove the contents of a writing, recording or

photograph. See Rule 1001(1) and 1001(2) for definitions of

the terms used in this rule.

Application of the rule requires a resolution of the question

whether the contents are sought to be proved. Thus an event

may be proved by nondocumentary evidence, even though a

written record of it was made. If, however, the event is sought

to be proved by the written record, the rule applies. For

example, payment may be proved without producing the

written receipt which was given. Earnings may be proved

without producing books of account in which they are entered.

McCormick (2d ed.) § 233, at 564; 4 Wigmore § 1245.

The assumption should not be made that the rule will come

into operation on every occasion when use is made of a

photograph in evidence. On the contrary, the rule will seldom

apply to ordinary photographs. In most instances a party

wishes to introduce the item and the question raised is the

propriety of receiving it in evidence. Cases in which an offer is

made of the testimony of a witness as to what he saw in a

photograph or motion picture, without producing the same, are

most unusual. The usual course is for a witness on the stand to

identify the photograph or motion picture as a correct

representation of events which he saw or of a scene with which

he is familiar. In fact he adopts the picture as his testimony, or,

in common parlance, uses the picture to illustrate his

testimony. Under these circumstances, no effort is made to

prove the contents of the picture, and the rule is inapplicable.

See Paradis, The Celluloid Witness, 37 U. Colo. L. Rev. 235,

249-251 (1965).

On occasion, however, situations arise in which the contents

of a photograph are sought to be proved. Copyright,

defamation, and invasion of privacy by photograph or motion

picture fall in this category. Similarly this applies to situations

in which the picture is offered as having independent probative

value, e.g. an automatic photograph of a bank robber. See

Mouser and Philbin, Photographic Evidence — Is There a

Recognized Basis for Admissibility? 8 Hastings L.J. 310

(1957). The most commonly encountered of this latter group

is, of course, the X-ray, with substantial authority calling for

production of the original. Daniels v. Iowa City, 183 N.W. 415

(Iowa 1921); Cellamare v. Third Avenue Transit Corp., 77

N.Y.S.2d 91 (1948); Patrick & Tilman v. Matkin, 7 P.2d 414

(Okla. 1932); Mendoza v. Rivera, 78 P.R.R. 569 (P.R. 1955).

Hospital records which may be admitted as business records

under Rule 803(6) commonly contain reports interpreting

x-rays by the staff radiologist, who qualifies as an expert, and

these reports need not be excluded from the records by the

instant Rule. Rule 803(6) allows opinions in business records

to be admitted. And it should be noted that Rule 703 allows an

expert to give an opinion on matters not in evidence. Rule

1002 must be read in conjunction with these other Rules. Of

course, the trial judge might decide to require testimony,

relying on the last clause of Rule 803 (6) and Rule 705.

The Advisory Committee’s Note accompanying Federal

Rule 1002 states that “the rule [does not] apply to testimony

that books or records have been examined and found not to

contain any reference to a designated matter.” This comment

can be very misleading.

In a dispute between A and B over the terms of a contract—

specifically whether A would pay liquidated damages for

delays in delivering goods to B—before A, who possesses the

original contract, will be permitted to testify that the contract

has no liquidated damages clause, A must produce the original

or account for its nonproduction. It is plain that the claim of

the absence of a contract provision is the converse of the claim

of a provision’s inclusion. Rule 1002 applies to both claims. In

some instances a writing or recording will be collateral and this

Rule will not apply because of 1004(d). In other instances

where documents are voluminous and it would be unduly

burdensome to show the absence of a certain provision in all,

Rule 1006 should provide a satisfactory solution. While there

is some support in the cases for the Advisory Committee’s

comment, it is unwarranted in view of the other provisions of

this Article.

Rule 1002 states the general rule that the original is to be

supplied when a writing or recording is offered for proof of its

contents. But other provisions of Article X of these rules soften

the impact of Rule 1002. Rule 1003 makes duplicates

presumptively admissible. Rule 1004 provides for admission of

secondary evidence under certain conditions. Rule 1005

creates a special provision for public records. Special provision

is also made for voluminous documents in Rule 1006. And

Rule 1007 provides for the substitution of certain party

admissions for proof of an original writing or recording.