Rule 1002. Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.

Committee Notes

Maine Restyling Note [November 2014] The restyled Rule preserves the substantive differences between the Maine and Federal Rules.

Advisers' Note to former M.R. Evid. 1002 (February 2, 1976) This rule is the familiar one requiring production of the original writing to prove its contents, expanded to include recordings and photographs as defined in Rule 1001. It applies only when offered to prove the content. There are some events with legal significance that can only occur in writing; for example, a will. In proving that sort of event the original must be produced or its absence accounted for under Rule 1004. Many situations arise where the parties choose to perform the event in writing although the law does not require it. For example, a contract may be made or a notice given in writing. Here also the original must be produced or accounted for. An event may be proved without resort to a writing, such as payment without producing the written receipt which was given or earnings without producing the books of account in which they are entered. It is only when a party voluntarily seeks to make proof by the writing that the rule applies. Usually a photograph is not offered to prove its content. Typically a witness identifies a photograph as a fair representation of something he saw (unless it is shown to be a fair representation of something germane to the case, it is irrelevant). The photograph is admissible to illustrate his testimony. This is not an attempt to prove the content of the picture and the rule does not apply. Sometimes, however, the content is sought to be proved. The Federal Advisory Committee offers an automatic photograph of a bank robber as one having independent probative value. Here the rule with respect to the original applies. There are some situations where the contents of a writing or a photograph are directly in issue. Examples would include libel and copyright cases, cases of invasion of privacy by photograph, and X-rays. Note, however, that with respect to X-rays, an expert may give an opinion based on matters not in evidence. Rule 703. The reference to exceptions provided by these rules or by statute preserves whatever such exceptions there may be. See, for example, 16 M.R.S.A. § 356 (original entry of transcribed account need be produced only if court so requires).