Rule 1004. Admissibility of other evidence of contents

Admissibility of other evidence of contents. The original is not required, and other evidence of the contents of a writing is admissible, should there be no duplicate readily available to the proponent or witness, if:

(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, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) COLLATERAL MATTERS. The writing is not closely related to a controlling issue.

Committee Notes

Advisory Committee’s Notes Ala.R.Evid. 1002 establishes the requirement that generally one must produce the original when proving the contents of a writing. Rule 1004, as does its counterpart under the Federal Rules of Evidence, sets forth those grounds that, if shown by the offering party, justify the admission of secondary evidence of the contents of the writing. These grounds, which allow the offeror to circumvent the best evidence preference for the original, have long been recognized in Alabama. See generally C. Gamble, McElroy’s Alabama Evidence § 212.01 (4th ed. 1991). If the failure to produce the original is satisfactorily explained under one of the paragraphs of this rule, the door is then open to admit secondary proof of the original’s contents. Such secondary evidence historically has presented itself in such forms as oral testimony and copies. While a showing of an original’s unavailability opens the door to secondary evidence as to its contents, there is a hierarchy governing the order of offering such secondary evidence. Rule 1004 continues Alabama’s historic principle that there are degrees of secondary evidence; specifically, one may not offer oral testimony as to the contents of a writing without first having to produce or account for the nonproduction of a copy that exists. See Williams v. Lyon, 181 Ala. 531, 61 So. 299 (1913) (recognizing that one must offer secondary evidence of the “highest grade”). See also C. Gamble, McElroy’s Alabama Evidence § 229.02 (4th ed. 1991) (dealing with Alabama’s historic position that there are degrees of secondary evidence and that the proponent has the obligation to present the highest form of that evidence). This is a rejection of the corresponding federal rule under which there are no degrees of secondary evidence. See Fed.R.Evid. 1004 advisory committee’s note. Paragraph (1). Originals lost or destroyed. If the originals are shown to be lost or destroyed, the way is then clear for the offeror to present secon