The Admissibility of Secondary Evidence: C.r.e. 1003 and 1004

• Publication year: 2002
• Pages: 77
• Citation: Vol. 31 No. 5 Pg. 77

31 Colo.Law. 77 Colorado Lawyer 2002.

2002, May, Pg. 77. The Admissibility of Secondary Evidence: C.R.E. 1003 and 1004

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77

Vol. 31, No. 5, Pg. 77

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 77]

Specialty Law Columns
Civil Evidence
The Admissibility of Secondary Evidence: C.R.E. 1003 and 1004
by Donald I. J. Kelso

This month's article was written by Donald I. J. Kelso Denver, a senior associate with Holme Roberts & Owen LLP?(303) 861-7000. Those interested in submitting an article for publication in Civil Evidence should contact the editor Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@ jcfkk com.

Q: Can copies or other evidence of documents be admitted into evidence in place of the originals?

A: Yes, unless it would be unfair to admit a duplicate copy or if the original is unavailable through the bad faith of the proponent.

Assumed Facts

Plaintiff Innocent Ernie purchases a unique Ming vase from Defendant Dodgy Dave's Antiques. Ernie and Dodgy Dave execute a sale contract describing the vase and recording the sale to Ernie. Dodgy Dave keeps the original contract and makes a photocopy of it for Ernie. When Ernie gets home, he discovers a large crack in the vase, of which he takes a photograph. The next day, he returns to Dodgy Dave's to complain, only to find that Dave denies all knowledge of the sale. Worse, when Ernie returns home, he finds his house has been burgled and the vase stolen.

Ernie sues Dodgy Dave in Colorado state court, asserting claims for breach of contract. During discovery, Dodgy Dave denies having the original contract. He does, however, produce a document that appears to be a carbon copy of the contract, but Dodgy Dave asserts that it may be different from the original. Ernie has a barely legible photocopy of the contract, as well as another copy on which he wrote various comments. Ernie's counsel seeks to introduce all three copies of the contract, as well as the photograph of the vase. Dodgy Dave's counsel objects to admission of the copies and the photograph on the basis of the "best evidence rule" [Colorado Rules of Evidence ("C.R.E.") Rule 1002]. How should the court rule on the admissibility of these documents?

Discussion

C.R.E. 1003 provides:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2)...