Alaska Comm. R. Evid. 1008
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 destroyed, 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.
Alaska Comm. R. Evid. 1008