Article X — Contents of Writings, Recordings, and Photographs
Rule 1004: Admissibility of Other Evidence of Content
What is Admissibility of Other Evidence of Content?
Rule 1004 provides four situations where secondary evidence (testimony about the contents or other copies) can be used instead of the original, even when the Best Evidence Rule would normally require the original. These are the escape valves that ensure the Best Evidence Rule does not create unjust results when the original is genuinely unavailable.
Source: Fed. R. Evid. 1004
Rule Text
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: all the originals are lost or destroyed, and not by the proponent acting in bad faith; an original cannot be obtained by any available judicial process; the party against whom the original would be offered had control of the original, was put on notice that the original would be a subject of proof at the trial or hearing, and fails to produce it; or the writing, recording, or photograph is not closely related to a controlling issue.
Plain English Explanation
Rule 1004 provides four situations where secondary evidence (testimony about the contents or other copies) can be used instead of the original, even when the Best Evidence Rule would normally require the original. These are the escape valves that ensure the Best Evidence Rule does not create unjust results when the original is genuinely unavailable.
The four exceptions are: (1) the originals have been lost or destroyed (as long as the proponent did not destroy them in bad faith); (2) the original cannot be obtained through available judicial process, such as a subpoena; (3) the opposing party has control of the original and fails to produce it after being put on notice; and (4) the document is not closely related to a controlling issue in the case (collateral documents). The last exception recognizes that the Best Evidence Rule's protections are less important for peripheral matters.
When the original is excused under Rule 1004, the proponent is free to prove the contents by any available secondary evidence — testimony, notes, or other copies. There is no hierarchy among types of secondary evidence. A witness's testimony about what a lost document said is just as acceptable as a handwritten copy, though the weight of the evidence is always for the jury to decide.
Key Points
- 1The original is excused when: lost/destroyed (not in bad faith), unobtainable by process, in opponent's control, or collateral to the case
- 2No hierarchy of secondary evidence — any type of proof of contents is acceptable
- 3Bad faith destruction by the proponent forfeits the right to use secondary evidence
- 4The collateral documents exception avoids requiring originals for minor, peripheral matters
Common Exam Issues
- Whether the proponent acted in bad faith in losing or destroying the original
- The notice requirement for the opponent's-control exception — was the opposing party put on notice to produce the original?
- Determining whether a document is 'collateral' to the case and therefore does not require the original
- What types of secondary evidence are sufficient to prove contents when the original is excused
Landmark Cases
- Seiler v. Lucasfilm, Ltd.
- United States v. Standing Soldier
Article X — Contents of Writings, Recordings, and Photographs
This rule is part of Article X — Contents of Writings, Recordings, and Photographs of the Federal Rules of Evidence.
Browse All FRE RulesMaster Evidence Law with AI-Powered Study Tools
20+ tools to help you study smarter. 3-day free trial, then $9.99/month.
Start Free Trial