Alaska Comm. R. Evid. 1002
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.
Alaska Comm. R. Evid. 1002