Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that partys written admission, without accounting for the nonproduction of the original.
The rule adopted by Congress is the rule proposed by the Supreme Court. Gender-neutralizing amendments were made to this rule in 1987.
Advisory Committees Note
While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579 (Exch. 1840), allows proof of contents by evidence of an oral admission by the party against whom offered, without accounting for nonproduction of the original, the risk of inaccuracy is substantial and the decision is at odds with the purpose of the rule giving preference to the original. See 4 Wigmore §1255. The instant rule follows Professor McCormicks suggestion of limiting this use of admissions to those made in the course of giving testimony or in writing. McCormick §208, p.424. The limitation, of course, does not call for excluding evidence of an oral admission when nonproduction of the original has been accounted for and secondary evidence generally has become admissible. Rule 1004, supra.
A similar provision is contained in New Jersey Evidence Rule 70(1)(h).