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  • Writer's pictureBrian Foley

Conroe Criminal Defense Attorney - Texas Rules of Evidence Series Rule 1002-1004

Conroe Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

So Rule 1002 looks simple but its a rule that is only relevant because of its exceptions.

Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless these rules or other law provides otherwise.

Although generally the original recording is required to prove the content of a video tape, see Tex.R.Crim.Evid. 1002, "other evidence of the contents of a . . . recording . . . is admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." Tex.R.Crim.Evid. 1004(1). Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000).

Rule 1002 does require an original but Rule 1003 regarding the admissibility of duplicates almost immediately dispenses with the originality requirement.

Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

In practice very few photographs or videos are ever challenged due to a question being raised about the original's authenticity. Even though the digital age and editing makes it easier and easier to falsify text messages, and even videos with the invention of "deep fake" technology.

Rule 1004. Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith; (b) an original cannot be obtained by any available judicial process; (c) an original is not located in Texas; (d) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (e) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1004 is a laundry list of exceptions for rule 1002.

In Wood v. State the defendant destroyed the video of the capital murder with a blow torch. Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000). The State was then allowed to authenticate the video using other means under rule 1004. The tape of the murder was shown to a third party and that party described what he saw on video. "The trial court did not abuse its discretion in admitting [the third party]'s testimony describing what he had viewed on the tape. Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000)."


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