Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003

Abstract

In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that "[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.

Keywords: Evidence, Best Evidence Rule, Authentication, Duplicates

JEL Classification: K19, K40, K41