Supreme Court of Kentucky Finds “Duplicate” of Lease Was Improperly Admitted Under the Best Evidence Rule
Back in 2008, I published Even Better Than the Real Thing: How Courts Have Been Anything but Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003, 68 Md. L. Rev. 160 (2008). The article was a deep dive into Federal Rule of Evidence 1003, which provides that “[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.”
The thesis of the article was that courts have almost never found genuine questions raised about the authenticity of writings, recordings, and photographs, which could create problems as we were entering an era where people could Photoshop duplicates and do other things that make them look like the copy of an original despite not being the real McCoy. And those concerns have only risen in an era of AI. Therefore, it was heartening to see the Supreme Court of Kentucky take the rule seriously in its recent opinion in Masters v. Commonwealth, 2025 WL 2999069 (Ky. 2025).
In Masters, Joseph Masters was convicted of murder, first-degree burglary, and four counts of unlawful imprisonment. On appeal, Masters argued the trial court erred when it allowed the Commonwealth to introduce a copy of a purported lease for the trailer where the alleged murder occurred (the lease establishing that someone other than Masters was the rightful lessee). Part of this was a timing problem, with Masters Masters arguing “the copy should be excluded because the Commonwealth violated the trial court’s discovery order. The case had been prepared for two years yet the Commonwealth did not turn over a copy of the lease until the first day of trial.”
In addressing this issue on appeal, the Supreme Court of Kentucky began by noting that “[t]here is surprisingly little case law on these rules….KRE 1003 has only been cited four times in published opinions.” The court then contrasted the case at hand with a prior case involving admission of copies of x-rays, concluding as follows:
The facts of our case are starkly different. Due to the late admission of the copy of the lease, a cloud was cast over the authenticity of the original. Powers gave hearsay testimony that Woods informed her over telephone he had lost the original when moving offices. Then there is the fact the copy was retained by Welsh, not Powers, and was allegedly found in Welsh’s family’s possession. Powers cannot at all account for the custody of the document for the intervening three years between the signing of the lease and trial, and her testimony is not comparable to that found in Savage. Finally, there is the discrepancy in the dates on the copy of the lease and the lack of the landlord’s signature….
Consequently, given the cloud cast over the authenticity of the original under the circumstances of this case; the failure to demonstrate a diligent search for the original; and the use of hearsay testimony of an interested witness regarding the loss of the original as opposed to calling the last known custodian without any demonstration of his unavailability as a witness; we conclude the trial court’s decision to admit the copy of the lease is not supported by sound legal principles and is an abuse of its discretion.
The court then found that this error was prejudicial with regard to Masters’s burglary conviction and reversed it.