Rule 1004  Admissibility of other evidence
of contents.  The original or a duplicate is not required, and other
evidence of the contents of a writing, recording, or photograph is admissible
if:



(1)  Originals lost or destroyed.  All originals are
lost or have been destroyed, unless the proponent lost or destroyed them in bad
faith; or



(2)  Original not obtainable.  No original can be
obtained by available judicial process or procedure; or



(3)  Original in possession of opponent.  At a time
when an original was under the control of the party against whom offered, the
party was put on notice, by the pleadings or otherwise, that the content would
be a subject of proof at the hearing, and the party does not produce the
original at the hearing; or



(4)  Collateral matters.  The writing, recording, or
photograph is not closely related to a controlling issue. [L 1980, c 164, pt of
§1; gen ch 1985]



 



RULE 1004 COMMENTARY



 



  This rule is similar to Fed. R. Evid. 1004, except
that the words "or a duplicate" are added to the first sentence of
this rule.  The change is not substantive.  The rule specifies the exceptions
to Rule 1002, and effects no change in existing law, see Chu Chung v. Jellings,
30 H. 784 (1929) (destroyed); Rex v. Lenehan, 3 H. 714 (1876) (possession of
opponent).



  As the Advisory Committee's Note to Fed. R. Evid. 1004 points
out, the "rule recognizes no 'degrees' of secondary evidence."  Thus,
when this rule is satisfied, there is no preference for one form of secondary
evidence over another.



 



Case Notes



 



  Although rule 1002 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 paragraph
(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 paragraph (1), the original text messages were "lost
or destroyed".  117 H. 127, 176 P.3d 885.