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. [Restyled effective July 1, 2016.] Advisory Committee Historical Note Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules. Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.” Advisory Committee Note The language of Rule 1008 has been amended as part of the general 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. Most preliminary questions of fact regarding the best evidence rule will be decided by the judge pursuant to Rule 104. For example, the judge must decide whether the loss of the original has been established. On the other hand, questions which go to the merits of the case are properly jury questions, subject, however, to the control vested in the trial judge by Rule 104(b), supra. [“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.] ARTICLE XI. MISCELLANEOUS RULES