Rule 1008 – Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

Summary and Explanation

Federal Rule of Evidence 1008 addresses the determination of whether evidence falls under the category of an original or a duplicate, and who makes this determination. Here’s a summary and explanation:

Content of the Rule: Rule 1008 states that when the admissibility of evidence depends on whether it is an original or a duplicate, or whether a writing, recording, or photograph is an original, these issues are questions for the trier of fact to decide. The trier of fact, typically a jury or a judge in a bench trial, determines whether the evidence presented meets the criteria for being considered an original or a duplicate.

Purpose and Application:

  • Judicial Decision: This rule assigns the responsibility of deciding the authenticity and classification of evidence as either an original or a duplicate to the jury or judge, rather than having it pre-determined by a rule of law.
  • Case-by-Case Basis: The determination is made on a case-by-case basis, considering the specific circumstances and evidence of each case.


  • Applicable in situations where there’s a dispute over whether a piece of evidence is an original or a duplicate.
  • Includes any type of evidence that can be categorized as a writing, recording, or photograph.

In essence, Rule 1008 ensures that the determination of whether a piece of evidence is an original or a duplicate, or whether a document is what it purports to be, is made by the trier of fact. This approach allows for a more nuanced and context-specific decision, acknowledging that such determinations can be complex and dependent on the unique facts of each case.


(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1947; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Proposed Rules

Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge. However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue. Levin, Authentication and Content of Writings, 10 Rutgers L.Rev. 632, 644 (1956). The latter portion of the instant rule is designed to insure treatment of these situations as raising jury questions. The decision is not one for uncontrolled discretion of the jury but is subject to the control exercised generally by the judge over jury determinations. See Rule 104(b), supra.

For similar provisions, see Uniform Rule 70(2); Kansas Code of Civil Procedure §60–467(b); New Jersey Evidence Rule 70(2), (3).

Committee Notes on Rules—2011 Amendment

The language of Rule 1008 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Scroll to Top