Alaska R. Evid. 1008 commentary

The application of the rule preferring the original of a

writing, recording, or photograph to prove its contents often

depends on the determination of preliminary questions of fact.

Such preliminary factfinding is usually undertaken by the

judge in accordance with Rule 104. See Reporter’s Comment

to Rule 104 for the considerations underlying preliminary

questions of admissibility.

Rules 1003 and 1004 present numerous findings of fact

which must be made precedent to the admissibility of secondary evidence. In Rule 1003 the trial judge must initially

decide whether (a) a given item of evidence qualifies as a

duplicate; (b) whether a genuine question is raised as to the

authenticity of the original; and (c) whether it would be unfair

to admit a duplicate in lieu of an original. Rule 1004 calls for

the trial judge to determine whether or not failure to produce

the original can be satisfactorily explained so as to permit

proof of the contents by secondary evidence.

However, when the contention is raised that the asserted

writing never existed, or that the evidence produced at trial is

not the original, or that the evidence of the contents does not

correctly reflect the contents, the resolution of the dispute

should not be by the trial judge as a preliminary question of

fact. These contentions relate to the existence of a document or

its contents, not its admissibility, and hence they raise ultimate

issues of fact which should be determined by the jury as

factfinder.

In practical terms this means that the trial judge, when

making a preliminary finding of excuse under Rule 1004, may

permit secondary evidence to come in to prove the contents of

an original whose very existence is in dispute. The judge must

determine the validity of the excuse while assuming arguendo

the existence of the document. A preliminary determination to

the effect that the document never existed would preclude a

jury decision on the central issue of the case. The jury may be

called upon to decide a case between a party proffering secondary evidence of the contents of a contract after a

preliminary finding by the judge that the original was de-

stroyed, and a party who claims that the contract never existed.

This rule is identical to Federal Rule 1008. For similar

provisions see Uniform Rule 70(2); New Jersey Rule 70(3);

Nevada Rule 52.295; and Nebraska Rule 27-1008.