MBE Rules · Evidence
Original Not Required
FRE 1004
The rule
Secondary evidence of content is admissible when originals are lost or destroyed without bad faith, unobtainable by process, in an opponent's control after notice, or relate only to a collateral matter.
In plain English
The rule states that you can use secondary evidence to prove the content of a document if the original document is unavailable due to reasons like being lost, destroyed without bad faith, or if it is in the control of the opposing party after they were notified. This allows parties to still present their case even when the original evidence cannot be produced.
Worked example
In a contract dispute, the original contract was accidentally destroyed in a fire, and the party seeking to enforce the contract wants to introduce a copy of it. Since the original is lost without bad faith, the court allows the copy as secondary evidence, and the party wins the case.
Memory hook
Lost originals? Secondary evidence saves the day!
The trap
Exams often include scenarios where students mistakenly believe that secondary evidence is always inadmissible without the original, failing to recognize the exceptions. Watch for details about the original's unavailability to avoid this pitfall.
How examiners test it
Questions typically present a scenario involving missing documents and ask whether secondary evidence can be admitted, testing your understanding of the exceptions to the original document rule.
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