§ 30.03 Proving Contents

• Jurisdiction: United States

§ 30.03 Proving Contents

The rule applies only when a party attempts to prove the contents of a writing or recording. Typically, this occurs when (1) the event to be proved is a written transaction, (2) a party chooses a written method of proof, or (3) a witness's knowledge is derived solely from having read a document.

[A] Written Events; Independent Events

Some events and transactions, such as those involving wills, deeds, (most) contracts,⁹and judgments, are written transactions, and the rule requires production of the original writing when a party seeks to prove their contents.

Independent events recorded. Rule 1002 does not apply when the event sought to be proved existed independently of a writing, even if that event has been recorded. This narrow scope of the rule is counter-intuitive. For example, if an accused makes an oral confession that is tape recorded or subsequently reduced to writing, the rule does not apply.¹⁰ The prosecution is not attempting to prove the contents of the recording or writing but rather the independent event (oral confession) that happened to have been recorded. Other examples include proof of the existence of a marriage, payment of a debt or a purchase, perjured testimony,¹¹ conversations,¹² as well as earnings in an account.¹³ Here, a writing may be used, but it is not required.

The trial court, however, has authority to require production of the writing or recording pursuant to Rule 611(a).¹⁴

[B] Written Method of Proof

If a party chooses to introduce a writing to prove a fact, the original must be produced.¹⁵ Thus, in the confession hypothetical cited above, if the prosecutor chose to use the writing to prove the confession, she would have to offer the original writing.¹⁶

[C] Knowledge Derived from a Writing

The rule also applies when a witness's knowledge is derived solely from reading a document or viewing a photograph.¹⁷ The rule would therefore apply to a witness who had read the confession and testifies to the contents of the written confession.¹⁸ (As opposed to a witness who heard the oral confession and seeks to testify.) In one case, for example, testimony concerning recordings from a global positioning satellite (GPS), which was used to track a boat carrying drugs, was subject to the rule.¹⁹ Similarly, the rule applies to text messages.²⁰

[D] Absence of a Writing

The federal drafters noted that the original writing rule does not apply "to testimony that books or records have been examined and found not to contain any reference to a designated matter."²¹

[E] Existence of a Writing

The rule does not apply when witnesses merely refer to the existence of a writing²² or the date of a writing.²³

[F] Recordings

The discussion in the preceding sections also applies to recordings. Recordings, however, raise an additional issue: whether the original writing rule applies to transcripts that are provided to jurors to aid in following tape recordings played at trial. The answer is no. The transcripts are merely a guide. The recording is the evidence and trumps the transcript if there is a conflict.²⁴

[G] Photographs

The original photograph is required to prove the contents of the photograph.²⁵ In most cases, however, photographs are not offered to prove their contents.²⁶ Photographs are typically admitted in evidence under what is known as the "pictorial testimony" theory of admissibility. A foundation for the admissibility of photographs is laid by establishing that the photograph is an "accurate and faithful representation" of the scene or object depicted.²⁷ Under this theory, the authenticating witness adopts the photograph as her own testimony. The original writing rule does not apply because the offering party is not attempting to prove the contents of a photograph but rather the scene depicted, an independent event.²⁸

There are, of course, cases in which the proponent is trying to prove the contents of a picture. Copyright cases, defamation cases, and cases involving invasion of privacy by photograph fall into this category. Obscene...