Rule 2:1008.FUNCTIONS OF COURT AND JURY

Rule 2:1008 divides labor between judge and jury when the admissibility of secondary evidence of a writing’s contents turns on a disputed fact. As a general matter, whenever admissibility under this article depends on the fulfillment of a condition of fact — whether the original was lost, whether it is in the opponent’s control, whether a writing is collateral — the court ordinarily decides whether that condition has been met. That keeps most best-evidence disputes as preliminary questions the judge resolves before the jury ever hears the secondary evidence.

The rule then identifies three questions that do not follow that pattern and instead go to the trier of fact: whether the asserted writing ever existed at all; whether another writing produced at trial is the original; and whether the offered secondary evidence of contents correctly reflects the writing’s actual contents.

These three questions share something the court-decided conditions do not: each goes to a factual dispute close to the heart of what the fact-finder is ultimately being asked to believe about the writing itself, rather than a foundational condition for letting secondary evidence be heard at all. Once the jury, or other trier of fact, hears the secondary evidence, it is positioned to judge whether the writing existed, whether what is labeled the original is genuine, and whether the secondary evidence accurately captures what the writing said.