Alaska R. Evid. 1004 commentary

This rule is identical to its federal counterpart and is very

similar to Uniform Rule 70(1) (a)—(d). It is based on a

common law tradition which permits secondary evidence to be

used to prove the contents of a writing, recording, or

photograph when failure to produce the original can be ex-

plained satisfactorily. The Commissioner’s Note following the

Uniform Rule expresses the concerns underlying this rule:

The “Best Evidence Rule” at common law as well as

here is a preferential rather than an exclusionary rule. Its

object is to prevent a litigant from depriving the trier of fact,

by fraudulent design, of the benefit of the only certain proof

of the content of a writing, the writing itself.

9A Uniform Laws Annotated 654 (1965).

When the requirements of one of the four subdivisions are

satisfied, there is little or no reason to fear fraud or other sharp

practices. Thus, secondary evidence is deemed admissible.

(a) Original Is Lost or Destroyed. This subdivision

permits secondary evidence if a proponent can show that the

originals are lost or have been destroyed without bad faith on

his part. Evidence of a search made in good faith of the places

where an original would be found if it existed should be

sufficient foundation to prove loss when no direct evidence is

available. The important factor here is that a proponent should

not benefit by admitting secondary evidence where the original

was lost or suppressed at his own instance. This extends to

situations where third parties have destroyed the original acting

at the direction of the proponent. See McCormick (2d ed.)

§ 237.

(b) Original Not Obtainable. When the original is in the

possession of a third party who is not a party to the case, the

original should be obtained by judicial process, i.e., such as a

subpoena duces tecum. Where the third party is beyond the

subpoena power of the trial court and no judicial process or

procedure can avail, secondary evidence can be introduced.

Great expense or difficulty are not sufficient to establish

excuse under this provision. See McCormick (2d ed.) § 238.

This may seem harsh, but the originals are by definition, see

subdivision (d), closely related to a controlling issue in a case.

(c) Original in Possession of Opponent. If an adverse

party is put on notice that the contents of a writing, recording

or photograph are to be proved at trial and the original is in his

control, if he fails to produce it secondary evidence can be

introduced. The party against whom it is being offered has the

ability to supply the original and failure to do so indicates lack

of concern. The notice requirement must afford the party a

reasonable chance to produce the original. This requirement

can be met in the pleadings or otherwise, if calculated to alert

the party that the original is necessary. Note that unlike

discovery procedures such as orders to produce, there is no

compulsion to produce, only the timely chance to substitute an

original for secondary evidence. See McCormick (2d ed.)

§ 239.

(d) Collateral Matters. When the contents of the writing,

recording or photograph are not closely related to a controlling

issue in the trial, secondary evidence will be permitted. This is

often referred to as the exception for collateral evidence. The

trial judge will exercise some discretion in determining

whether evidence is related to collateral issues by considering

such factors as (a) the centrality to principal issues of

litigation; (b) the complexity of relevant features of the

writing; and (c) the existence of genuine dispute as to the

contents. McCormick (2d ed.) § 234 at 565-566.

If Rules 1003, 1005, 1006, or 1007 are utilized, there is no

reason to use Rule 1004. Rule 1004 applies when there is no

other rule allowing secondary evidence and the proponent of

the evidence must justify its admission in lieu of the original.