(1) Except as provided in subsection (2), when the admissibility under this chapter of other evidence of the contents of writings, recordings, or photographs depends upon the existence of a preliminary fact, the question as to whether the preliminary fact exists is for the court to determine.
(2) The trier of fact shall determine whether:
- (a) The asserted writing ever existed.
- (b) Another writing, recording, or photograph produced at the trial is the original.
- (c) Other evidence of the contents correctly reflects the contents.
Who Decides What? The Judge vs. The Jury: This statute clarifies the division of labor between the judge and the jury when it comes to disputes over the Best Evidence Rule.
The Judge's Role (Legal Gatekeeper):
The judge is responsible for deciding the preliminary legal questions. Specifically, the judge determines whether a party has a valid excuse for not producing an original document under the exceptions listed in § 90.954 (e.g., whether the original was lost, is being held by the opponent, etc.).
The Jury's Role (Fact-Finder):
Once the judge allows "other evidence" (like a copy or testimony) to be presented, the jury is responsible for deciding the ultimate factual disputes about the evidence. The jury decides questions such as:
- Did the original document ever actually exist?
- Is the document produced at trial the real original?
- Does the copy or the witness testimony accurately reflect what the original said?
