Documents and What They Prove

When a Copy Is Enough

The general position is more generous than most people assume: a copy will do. The exceptions are narrow, they are predictable, and knowing which of them is in play decides whether an afternoon is spent obtaining an original or spent on something useful.

Documents and What They Prove6 min readCourt rulesOriginals and copies

A flatbed document scanner with its lid raised on an office desk — A reproduction, and the questions it cannot answer. — Koffermejia, CC0, source.

The rule in short

A duplicate is admissible to the same extent as an original unless a genuine question is raised about authenticity or the circumstances make it unfair. Beyond that general rule, particular instruments require the original as a matter of their own law: negotiable instruments, wills in most states, and documents where possession itself confers a right. Agencies impose their own separate requirements.

The question is asked constantly and answered nervously, usually by producing the original in case. The rule is more accommodating than the nervousness suggests, and the situations in which a copy genuinely will not do form a short and recognizable list.

The general position

Duplicates are admissible. A duplicate is admissible to the same extent as an original, which covers photocopies, scans and any other accurate mechanical reproduction of the document.

The exception is a real doubt. A genuine question about the original's authenticity, meaning something more than a formal objection with nothing behind it, restores the requirement to produce it.

Or circumstances making it unfair. Typically a partial copy where the remainder would change the sense, or a reproduction that has lost the feature in dispute.

Most objections fail. Because most objections to copies are made reflexively rather than because anybody genuinely believes the original said something different, and a decision-maker who asks for the reason usually receives none.

The wider rule is narrower still. The requirement of an original only ever bites where the contents of the writing are themselves in issue, as the difference between an original and a copy sets out.

Instruments that need the original

Negotiable instruments. A promissory note or a bill of exchange embodies the right in the paper, and possession of the instrument is part of the entitlement to enforce it.

Wills, in most states. The original is lodged, and a copy raises a presumption in many jurisdictions that the testator destroyed the original with the intention of revoking it.

Documents of title. Bills of lading, warehouse receipts and similar instruments where delivery of the paper transfers control of the goods.

Share certificates, where still issued. Because the certificate is the evidence of holding for the purposes of transfer, and a copy transfers nothing at all. Registered holdings without certificates work on an entirely different basis.

Anything where possession is the right. The common thread is that the document is not a record of a right but the right itself, and a copy of a right is not a right.

Setting	Copy usually accepted	Why
Ordinary civil proceeding	Yes	Duplicates are admissible unless authenticity is doubted
Enforcing a promissory note	No	Possession of the instrument is part of the right
Probating a will	No	A missing original raises a presumption of revocation
Agency application	Sometimes	The agency sets its own requirement
Foreign civil record	Certified copy	The receiving office cannot check the register

Agency requirements are separate

Agencies set their own rules. The rules of evidence govern proceedings, not counters. An office may require an original for its own administrative reasons and is not applying any evidential principle in doing so.

Originals are often returned. Many agencies inspect and return the document at the counter, which changes the calculation entirely: producing the original costs a visit rather than the permanent loss of the only copy in existence.

Certified copies frequently substitute. Where an agency asks for an original document it will very often accept a certified copy, and who may issue one decides whether the substitute works.

Foreign documents attract stricter rules. Because the receiving office cannot check the issuing register, the requirements around authentication are correspondingly heavier.

The instructions say which. This is one of the things the instruction set to a form exists to specify, and reading it is quicker than guessing.

The nervous original

Carrying the original to every appointment is not free. Documents are lost in transit, left on counters and surrendered to offices that do not return them. Where a certified copy will do, using one keeps the original where it is safest.

When the original is gone

Loss without bad faith opens the door. Other evidence of the contents becomes admissible where the original was lost or destroyed, provided the loss was not the proponent's doing in bad faith.

The explanation comes first. A copy offered without any account of what happened to the original is weaker than the same copy offered with one, and the account costs a paragraph.

Destruction after a dispute is different. That is not loss but spoliation, and the consequences run in the opposite direction.

An affidavit of loss is the usual vehicle. Setting out what the document was, when it was last seen, what search has been made for it and why it cannot now be produced, which is covered in affidavits of lost documents.

Secondary evidence follows. Drafts, counterparts, correspondence quoting the document, and the recollection of people who read it, in roughly that order of usefulness.

Deciding in practice

Ask what turns on the document. Where the contents are agreed, the argument about copies is an argument about nothing, and it can usually be closed by asking the other side to confirm the contents.

Ask who is objecting and why. A specific reason for doubting the copy is worth taking seriously; an objection with no reason attached usually evaporates when the reason is requested.

Produce the original if it is to hand. The cheapest way to end the discussion, and it costs nothing where the document is in a drawer twenty feet away.

Preserve the original if it is not. Because the question will certainly be asked again in some other context, and the answer is far easier if the document still exists in a known place rather than somewhere in a house.

Say plainly which is being offered. Describing a document as a copy, in the statement that exhibits it, removes any suggestion later that something was being passed off as an original. It costs four words and closes an avenue of attack.

The practical rule that fits most situations is that copies are fine until somebody gives a reason why not. Demanding an original without a reason is a habit rather than a requirement, and it can usually be answered by asking what the concern is.

The instruments that genuinely need the original share one feature worth remembering: the paper is not a record of the right but the vehicle for it. Once that is clear, the list stops being something to memorize and becomes something to recognize.

Agency practice is the part that catches people out, because it looks like law and is not. An office asking for an original is exercising an administrative preference, and the preference is written down somewhere, usually in the instructions to whatever form is being filed.

Where the original has genuinely gone, the position is far better than most people fear. The route through secondary evidence is well established, and the thing that makes it work is an honest, specific account of the loss rather than a better copy.

Points to carry away

The general rule accepts duplicates for almost all purposes.
A genuine authenticity question restores the requirement of the original.
Some instruments require the original because possession carries the right.
Agencies set their own rules independently of the rules of evidence.
Where an original is required and unavailable, an explanation is required first.

Questions readers ask

Can a will be probated from a copy?

Sometimes, and it is harder than probating an original. In most states the absence of the original raises a presumption that the testator destroyed it intending to revoke, and that presumption has to be rebutted before the copy can be admitted. Evidence that overcomes it typically shows that the original was last held by somebody other than the testator, that it was lost in a fire or a move, or that the testator continued to speak about the will as though it existed. The presumption is rebuttable but it is a real obstacle.

Why do some offices insist on an original when a copy would do?

Usually for reasons that have nothing to do with evidence. An office may want to inspect security features that do not reproduce, may be required by its own regulations to sight the document, or may simply have a procedure written before scanning existed. The requirement is real in the sense that the office will not proceed without it, and the useful response is to ask whether a certified copy is acceptable, which it frequently is.

Is a photograph of a document the same as a photocopy?

For the purposes of the general rule, yes: both are accurate mechanical reproductions and both qualify as duplicates. In practice a photograph taken on a phone is more likely to attract objection, because it is more likely to be cropped, taken at an angle, or to omit parts of the page. The way to remove the objection is to photograph the whole document, square on, including any markings at the edges, and to say who took the photograph and when.

Sources

Federal Rules of Evidence — Rule 1003, Admissibility of Duplicateslaw.cornell.edu
Federal Rules of Evidence — Rule 1002, Requirement of the Originallaw.cornell.edu
Federal Rules of Evidence — Rule 1004, Admissibility of Other Evidence of Contentlaw.cornell.edu
Legal Information Institute — Best Evidence Rulelaw.cornell.edu
Legal Information Institute — Estate Planninglaw.cornell.edu
8 CFR § 103.2 — Applications, Petitions, and Other Documentslaw.cornell.edu

True Justice Record is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.

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