ARTICLE X.



CONTENTS
OF WRITINGS,



RECORDINGS,
AND PHOTOGRAPHS



 



Rule 1001  Definitions.  For purposes of
this article the following definitions are applicable:



(1)  "Writings and recordings" consist of
letters, words, sounds, or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photostating, photographing, magnetic
impulse, mechanical or electronic recording, or other form of data compilation.



(2)  "Photographs" include still
photographs, X-ray films, video tapes, and motion pictures.



(3)  An "original" of a writing or recording
is the writing or recording itself or any counterpart intended to have the same
effect by a person executing or issuing it.  An "original" of a
photograph includes the negative or any print therefrom.  If data are stored in
a computer or similar device, any printout or other output readable by sight,
shown to reflect the data accurately, is an "original".



(4)  A "duplicate" is a counterpart produced
by the same impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic re- recording, or by chemical reproduction, or by other equivalent
techniques which accurately reproduce the original.



(5)  A "public record" means any writing,
memorandum, entry, print, representation, report, book or paper, map or plan,
or combination thereof, that is in the custody of any department or agency of
government. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(10)]



 



RULE 1001 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 1001, except that
paragraph (5), defining "public records," is original and has no Fed.
R. Evid. counterpart.  Article X is concerned generally with the so-called
"best evidence rule," which emerged in common law during the early
part of the eighteenth century, see McCormick §231.  The best evidence rule
initially applied only to documentary evidence, but modern technology has
introduced a wide variety of data collection and storage systems to which the
rule is equally relevant.  The definitions in this rule are designed to clarify
terms that have been the subject of extensive judicial controversy, see
McCormick §232.



  Paragraph (1): This definition extends the traditional
concept of "documents" to include not only "writings" but
also such data systems as computers, photographic systems, and other
technological developments.  For this purpose, microfilm, microfiche, and
similar photographic data storage processes are "recordings" rather
than "photographs."  See Fed. R. Evid. 1001(1), Advisory Committee's
Note:  "Present day techniques have expanded methods of storing data, yet
the essential form which the information ultimately assumes for usable purposes
is words and figures.  Hence the considerations underlying the rule dictate its
expansion to include computers, photographic systems, and other modern
developments."



  Paragraph (2): This definition includes all photographic and
videographic processes, including microphotographs, and medical and industrial
x-rays.  However, when such a process is used for recording and storage of
letters, words, or numbers, it is a "recording," see paragraph (1)
supra, rather than a "photograph."



  Paragraph (3): What may be considered an "original"
for evidentiary purposes is not always clear-cut, see McCormick §235.  This
definition avoids the problem of "the chronology of creation,"
McCormick, id., or the issue of which of two or more counterparts is the
"original" by adopting a functional criterion.  A writing or
recording is determined to be "original" on the basis of the
intention of the person who produced or issued it.  By this standard, a carbon
copy of a contract, receipt, letter, or other writing, if issued or dispatched
as the primary operative communication, will be considered the
"original."



  Paragraph (4): The essential characteristic of a duplicate is
its fidelity to the original; for this reason, manually produced copies are not
duplicates within the meaning of this rule.  Because the fidelity of a
duplicate renders the possibility of error highly unlikely, the duplicate in
most instances may be admitted into evidence in lieu of the original, see Rule
1003 infra.



  Paragraph (5): This paragraph, which has no Fed. R. Evid.
counterpart, supplies the operative definition of "public record" as
that term is employed in Rule 1005 infra.  It was adapted from Hawaii Rev.
Stat. §92-50 (1976), which defines "public records" for public
inspection purposes.  The present definition is broad enough to include any
document that is in the custody of a public agency.



 



RULE 1001 SUPPLEMENTAL COMMENTARY



 



  The Act 191, Session Laws 1992 amendment added
"sounds" to the definition of "writings and recordings,"
Rule 1001(1).  The intent of this paragraph, as originally approved in 1980,
was to extend the reach of the original document requirement, Rule 1002, to
include not only documents but also the storage and output mechanisms of
"computers, photographic systems, and other modern developments," see
the original commentary.  The 1992 amendment makes clear that sound recordings
are included within the definition of "writings and recordings."  The
policy of the original document rule -- to require the original so as to
minimize fraud and mistake -- applies equally to words and data stored in sound
recordings.