Rule 1008: Functions of the Court and Jury

Rule 1008 divides the responsibilities between the judge and the jury when Best Evidence Rule issues arise. The general rule is that the judge decides the preliminary factual questions about admissibility — such as whether an original was lost or destroyed, whether it is obtainable by process, or whether the opponent has control of it. These are the foundational facts under Rule 1004 that determine whether secondary evidence can be admitted.

However, three specific factual questions go to the jury: (1) whether the writing, recording, or photograph ever existed in the first place; (2) whether something produced at trial is actually the original; and (3) whether secondary evidence of content accurately reflects the original. These questions go to the jury because they involve core factual disputes that could affect the verdict — the jury, not the judge, should weigh conflicting evidence on these points.

This division reflects the broader principle in evidence law of separating the judge's gatekeeping function (preliminary questions of admissibility under Rule 104(a)) from the jury's factfinding role (conditional relevance under Rule 104(b)). The judge manages the procedural prerequisites; the jury evaluates the substantive disputes about the evidence.