CRE 1004

History

(Federal Rule Identical.) COMMITTEE COMMENT Subparagraph (1) of the rule will be in lieu of Rule 43(g)(1) of the Colorado Rules of Civil Procedure; subparagraph (2) will be in lieu of Rule 43(g)(6); subparagraph (3) will be in lieu of Rule 43(g)(2). With respect to subparagraph (2), the adoption of this provision has a direct correlation with the comments appended to Rule 1003 regarding pretrial procedure. The Committee suggests that subparagraph (2) be viewed in terms of available judicial process or procedure that is reasonable in the circum- stances considering time and expense. For ex- ample, the FRE Committee’s Advisory Notes refer to procedure including subpoena duces tecum as an incident to the taking of a deposi- tion in another jurisdiction. Such time and ex- pense would often appear to be unjustified, and should in part be taken care of by the pretrial procedures recommended in comments under Rule 1003. ANNOTATION Law reviews. For article, ‘‘The Admissibility of Secondary Evidence: C.R.E. 1003 and 1004’’, see 31 Colo. Law. 77 (May 2002). This rule provides that the original of a written document is not required, and other evidence of its contents is admissible if the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith; therefore, when the proponent cannot produce the original of a written document, because of its loss or destruction, the trial court should admit secondary evidence. Rodriguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev’d on other grounds, 914 P.2d 921 (Colo. 1996). This rule requires exclusion of evidence only when the proponent’s bad faith causes the loss or destruction of the original docu- ment. The proponent must prove, to the satis- faction of the court, the absence of bad faith. Rodriguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev’d on other grounds, 914 P.2d 921 (Colo. 1996). In the event the original of a document is lost, destroyed or is not obtainable, or is in the possession of the opponent, other evidence of the contents of the writing is admissible. Decker v. Browning-Ferris Indus. of Colorado, Inc., 903 P.2d 1150 (Colo. App. 1995); Murphy v. Glenn, 964 P.2d 581 (Colo. App. 1998). Same rationale for admissibility or exclu- sion of evidence under this rule applies to evidence other than written documents. Ro- driguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev’d on other grounds, 914 P.2d 921 (Colo. 1996). Court erred in not applying the exception in subsection (1) to allow evidence of indem- nification contract, allegedly lost or de- stroyed, and such error constituted clear evi- dence of mistake amounting to error of law. United Cable Television of Jeffco, Inc. v. Mont- gomery LC, Inc., 942 P.2d 1230 (Colo. App. 1996). While this rule and C.R.E. 1003 may allow for admission of a duplicate will into evi- dence in lieu of the original, in the case of a lost or missing will, the standards specified in §15-12-402 will control whether the will can be admitted to probate. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001). Applied in People v. Banks, 655 P.2d 1384 (Colo. App. 1982), aff’d, 696 P.2d 293 (Colo. 1985).