Rule 1002  Requirement of original.  To
prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these
rules or by statute. [L 1980, c 164, pt of §1]



 



RULE 1002 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 1002 except
that "statute" is substituted for "Act of Congress."  Rule
1002 states the so-called "best evidence rule," requiring the
production of the original document whenever the proponent seeks to prove the
document's contents.  See, e.g., Ripley v. Kapiolani Estate, 22 H. 86 (1914). 
The present rule applies this requirement to writings, recordings, and
photographs as those terms are defined in Rule 1001.



  Note that this rule applies only when the effort is to
"prove the content of a writing."  The Advisory Committee's Note to
Fed. R. Evid. 1002 addresses this point:  "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."  Cf. Brown v. Equitable Life Assurance
Soc'y, 14 H. 80 (1902).



 



Case Notes



 



  Although this rule would ordinarily have precluded the
admission of testimony about cell phone text messages because such testimony
was not an "original", the testimony was admissible because rule 1004(1)
applied to the text messages such that other evidence could be admitted to
prove the content of the text messages; as complainant no longer had the actual
text messages because complainant no longer had the cell phone or cell phone
service, for purposes of rule 1004(1), the original text messages were "lost
or destroyed".  117 H. 127, 176 P.3d 885.