Colo. R. Evid. 1004

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 1004 - Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

(Federal Rule Identical.)

CRE 1004

Committee Comment

Subparagraph (1) of the rule will be in lieu of Rule 43(g)(1) of the Colorado Rules of Civil Procedure; subparagraph (2) will be in lieu of Rule 43(g)(6); subparagraph (3) will be in lieu of Rule 43(g)(2). With respect to subparagraph (2), the adoption of this provision has a direct correlation with the comments appended to Rule 1003 regarding pretrial procedure. The Committee suggests that subparagraph (2) be viewed in terms of available judicial process or procedure that is reasonable in the circumstances considering time and expense. For example, the FRE Committee's Advisory Notes refer to procedure including subpoena duces tecum as an incident to the taking of a deposition in another jurisdiction. Such time and expense would often appear to be unjustified, and should in part be taken care of by the pretrial procedures recommended in comments under Rule 1003.

Annotation Law reviews. For article, "The Admissibility of Secondary Evidence: C.R.E. 1003 and 1004 ", see 31 Colo. Law. 77 (May 2002). This rule provides that the original of a written document is not required, and other evidence of its contents is admissible if the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith; therefore, when the proponent cannot produce the original of a written document, because of its loss or destruction, the trial court should admit secondary evidence. Rodriguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev'd on other grounds, 914 P.2d 921 (Colo. 1996). This rule requires exclusion of evidence only when the proponent's bad faith causes the loss or destruction of the original document. The proponent must prove, to the satisfaction of the court, the absence of bad faith. Rodriguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev'd on other grounds, 914 P.2d 921 (Colo. 1996). In the event the original of a document is lost, destroyed or is not obtainable, or is in the possession of the opponent, other evidence of the contents of the writing is admissible. Decker v. Browning-Ferris Indus. of Colorado, Inc., 903 P.2d 1150 (Colo. App. 1995); Murphy v. Glenn, 964 P.2d 581 (Colo. App. 1998). Same rationale for admissibility or exclusion of evidence under this rule applies to evidence other than written documents. Rodriguez v. Schutt, 896 P.2d 881 (Colo. App. 1994), rev'd on other grounds, 914 P.2d 921 (Colo. 1996). Court erred in not applying the exception in subsection (1) to allow evidence of indemnification contract, allegedly lost or destroyed, and such error constituted clear evidence of mistake amounting to error of law. United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230 (Colo. App. 1996). While this rule and C.R.E. 1003 may allow for admission of a duplicate will into evidence in lieu of the original, in the case of a lost or missing will, the standards specified in § 15-12-402 will control whether the will can be admitted to probate. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001). Applied in People v. Banks, 655 P.2d 1384 (Colo. App. 1982), aff'd, 696 P.2d 293 (Colo. 1985).