Chapter 11 - § 11.2 ORIGINAL OF DOCUMENTS

• Jurisdiction: Colorado

§ 11.2 ORIGINAL OF DOCUMENTS

Colorado

➢ Best Evidence Rule. CRE 1002 requires the original writing, recording, or photograph unless otherwise set forth in the rules or statutes.

➢ Best Evidence Rule. "[T]he best evidence rule does not prohibit a witness from testifying to a fact of which that witness has personal knowledge merely because a written record was also made." Berenson v. USA Hockey, Inc., 338 P.3d 379, 381 (Colo. App. 2013) (citation omitted). "If, however, the fact is contained in a written record and a witness tries to prove the fact by stating what he or she read in the written record, the rule applies, and the written record must be produced." Id.

➢ Copies of Documents. A duplicate is admissible to the same extent as an original unless the original's authenticity is questioned or it would be unfair to admit the duplicate in lieu of the original. CRE 1003.

➢ Secondary Evidence Rule. CRE 1004 provides that the original of a document is not required and other evidence is admissible if at least one of the following four conditions is met:

(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 any 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, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he 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.

CRE 1004.

➢ Standard for Admissibility. "[T]he trial court has wide discretion in determining whether to require production of the original. In exercising this discretion, the trial court should consider the complexity of the writing, the danger of mistransmission of its contents, the difficulty of producing the original, and whether a bona fide dispute exists as to its contents." People v. Wortham, 690 P.2d 876, 878 (Colo. App. 1984) (citations omitted).
➢ Photographs in Lieu of Originals. In a criminal prosecution for receiving stolen goods, the "best evidence rule" did not preclude the use of photographs of the stolen goods. "There is not a broad, general rule of best evidence which applies to physical evidence. Instead, in modern practice, the rule is limited to requiring the production of the original writing when documents are submitted into evidence. The only instance in which the rule is applicable to photographs is when the content of the photographs is to be proved." People v. Williams, 654 P.2d 319, 323 (Colo. App. 1982) (citations omitted).

➢ Duplicate Originals. "The best evidence rule simply states a preference for the original writing in cases

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