§ 30.13 Function of Judge and Jury: FRE 1008

• Jurisdiction: United States

§ 30.13 Function of Judge and Jury: FRE 1008

Under most circumstances, the trial court decides preliminary questions concerning the applicability of the original writing rule pursuant to Rule 104(a). The judge decides whether a writing is an original or a duplicate and whether a party is attempting to prove the contents of a writing or recording. The court also decides the applicability of the exceptions.⁸⁸ The offering party has the burden of establishing admissibility by a preponderance of evidence.⁸⁹

However, there are three circumstances where the jury plays an expanded role:⁹⁰(1) when there is a question whether a writing ever existed; (2) when another writing is claimed to be the original; and (3) when the issue is whether other evidence correctly reflects the contents of the original. This represents a specialized application of Rule 104(b) on conditional relevancy.⁹¹ The court determines only whether evidence sufficient to support a finding by a reasonable jury has been admitted (prima facie standard).

The third circumstance, allocating to the jury the responsibility of determining whether secondary evidence correctly reflects the contents of the original, does not apply until the court has excused nonproduction of the original.⁹²

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Notes:

^[88] See Fed. R. Evid. 1008 advisory committee's note ("Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge.").

^[89] See supra § 7.02[B] (discussing standard of persuasion).

^[90] Fed. R. Evid. 1008 advisory committee's note ("[Q]uestions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue. The latter portion of the...