60-467. Original document required as evidence; exceptions. (a) An original writing, recording or photograph is required in order to prove its content unless these rules or a statute provide otherwise.
(b) A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
(c) If a writing is a telefacsimile communication and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as an original.
(d) An original is not required and other evidence of the content of a writing, recording or photograph is admissible if:
(1) The writing, recording or photograph is lost or has been destroyed without fraudulent intent on the part of the proponent;
(2) the writing, recording or photograph is outside the reach of the court's process and not procurable by the proponent;
(3) the opponent, at a time when the writing, recording or photograph was under the opponent's control, has been notified, expressly or by implication from the pleadings, that it would be needed at the hearing, and on request at the hearing has failed to produce it;
(4) the writing, recording or photograph is not closely related to the controlling issues and it would be inexpedient to require its production;
(5) the writing is an official record, or is a writing affecting property authorized to be recorded and actually recorded in the public records as described in K.S.A. 60-460(s), and amendments thereto; or
(6) calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, and such writings cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary.
(e) The proponent may prove the content of a writing, recording or photograph by the testimony, deposition or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
(f) 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 subsection (d). But in a jury trial, the jury determines any issue about whether:
(1) An asserted writing, recording or photograph ever existed;
(2) another one produced at the trial or hearing is the original; or
(3) other evidence of content accurately reflects the content.
(g) If the procedure specified by K.S.A. 60-245a(b), and amendments thereto, for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the copy of the records produced shall not be excluded under subsection (a).
(h) The following definitions apply to this section:
(1) "Telefacsimile communication" means the use of electronic equipment to send or transfer a copy of an original document via telephone lines.
(2) "Photograph" means a photographic image or its equivalent stored in any form.
(3) "Original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout, or other output readable by sight, if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.
(4) "Duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic or other equivalent process or technique that accurately reproduces the original.
History: L. 1963, ch. 303, 60-467; L. 1985, ch. 196, § 4; L. 1989, ch. 177, § 1; L. 2021, ch. 65, § 4; July 1.
Law Review and Bar Journal References:
"Evidence: The Admissibility of Computer Print-outs in Kansas," Thomas E. Lowman, 8 W.L.J. 330, 333, 334 (1969).
Discussion of K.S.A. 60-460(a) as related to "past recollection recorded," Dennis J. Stewart, 12 W.L.J. 151, 173 (1973).
"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225, 237 (1979).
"Evidence for the family lawyer: Intrafamily wiretapping, the Fifth Amendment and other selected topics," Steve Leben, 68 J.K.B.A. No. 3, 24 (1999).
CASE ANNOTATIONS
1. Contemporaneous objection must be made to exclude secondary evidence; "best evidence rule" is preferential not exclusionary rule. State v. Joseph Little, 201 Kan. 101, 104, 105, 439 P.2d 383.
2. Subsection (a), paragraph (6) does not apply to proof of nonexistence of record. State v. Yohe, 203 Kan. 855, 857, 457 P.2d 12.
3. County attorney permitted to testify as to oral statement of defendant; best evidence rule not violated. State v. Hill, 211 Kan. 239, 246, 505 P.2d 704.
4. "Best evidence" rule applies only to contents of writings. State v. Bagemehl, 213 Kan. 210, 214, 515 P.2d 1104.
5. Uncontradicted admission that note was paid by renewal note; unnecessary to produce renewal note. Cipra v. Seeger, 215 Kan. 951, 954, 529 P.2d 130.
6. Applied; improper admission into evidence of secondary testimony inculpating accused held harmless error under facts. State v. Thompson, 221 Kan. 176, 180, 558 P.2d 1079.
7. Defendant entitled to attempt to establish contents of lost contract cover letter. First National Bank of Hutchinson v. Kaiser, 222 Kan. 274, 277, 564 P.2d 493.
8. Typed taped confession read, corrected and signed by defendant independent evidence; not subject to section. State v. Goodwin, 223 Kan. 257, 258, 573 P.2d 999.
9. Expert opinion based on writings without producing writings allowed; no abuse of discretion; conviction of heroin possession affirmed. State v. Jacques, 2 Kan. App. 2d 277, 290, 579 P.2d 146.
10. Subsection (a) applies only where terms of writing are in issue; inapplicable to proof of facts evidenced by writing. State v. Woolridge, 2 Kan. App. 2d 449, 581 P.2d 403.
11. Fourth exception applied; testimony on magazine contents admissible; not closely related to issues; contents not disputed and production possibly prejudicial. State v. Lovelace, 227 Kan. 348, 352, 607 P.2d 49.
12. Tape recordings of highway patrol transmission is admissible as an official record. State v. Rainey, 233 Kan. 13, 17, 660 P.2d 544 (1983).
13. Rule inapplicable to photographic evidence. State v. Gardner, 10 Kan. App. 2d 408, 414, 701 P.2d 703 (1985).
14. Requirements for admission of certificate on intoxilizer for breath tests examined. State v. Lieurance, 14 Kan. App. 2d 87, 92, 782 P.2d 1246 (1989).
15. Whether oral testimony regarding certification of breathalyzer and operator without documentation violates best evidence rule examined. State v. Rohr, 19 Kan. App. 2d 869, 871, 879 P.2d 221 (1994).
16. Officer's testimony concerning his intoxilizer certification could not substitute for statutorily required certification document. State v. Muck, 262 Kan. 459, 464, 939 P.2d 896 (1997).
17. Trial court did not abuse discretion by admitting facsimile of a nonparty's business records after foundation laid. State v. Smith, 268 Kan. 222, 238, 993 P.2d 1213 (1999).
18. Cited; as tending to prove the contents of a writing, no evidence other than the writing is admissible. State v. Garcia, 40 Kan. App. 2d 870, 876, 196 P.3d 943 (2008).
19. Admission of a video and a slow motion version of the video did not violate the best evidence rule. State v. Dale, 293 Kan. 660, 267 P.3d 743 (2011).
20. Accurate printouts of emails satisfy the best evidence rule even if email messages were forwarded or contain email strings. State v. Robinson, 303 Kan. 11, 225, 363 P.3d 875 (2015).
21. A printed version of an electronically stored document may be admitted under the best evidence rule if there is no dispute regarding its authenticity. State v. Gauger, 52 Kan. App. 2d 245, 252, 366 P.3d 238 (2016).
22. Copy of drawing was not erroneously admitted under best evidence rule. State v. Rodman, 53 Kan. App. 2d 106, 114, 383 P.3d 187 (2016).
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