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  • Brian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 1005

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

Another exception to the requirement of an original is Rule 1005 which allows for copies of official records or documents if the document is a certified copy. There is also an exception to this exception which allows no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

This rule along with rule 1003 is a codification and adaptation of the common law "best evidence" rule. Under the common law if there was some better version of the evidence like an original copy or the actual item then other items were inadmissible because it wasn't the best evidence. "The purpose of the best evidence rule has always been to secure the most reliable information in disputes over the contents of writings. In pre-discovery and pre-Xerox days the means used to attain that objective was a strong preference for the `original.' With the advent of discovery and of xerography, the objective remains the same but the means of achieving it must be reexamined in the light of procedural and technological inventions." Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997) ""Despite the reliability of duplicates, Rule 1005 requires a copy of the type preferred by this Rule. It is now possible to get a reproduction that is identical to the original, using processes that eliminate the possibility of a human error in copying." Id.

Although the rules leave room for correction if the best evidence shows that a duplicate is incorrect the inability to require the proponent of the evidence to produce the original first basically destroys the best evidence rule from the common law.

Rule 1005. Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.


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