A recent trend among banks is to xerox copies of checks and not retain the originals. I have been asked if this is going to present any future evidentiary problems? On a very basic level, the best evidence rule should allow for the introduction of these xerox copies, but I am wondering about other issues that I may be missing?

We generally get around this issue with having the bank in question provide a copy of the checks in question with a Business Records Affidavit (see suggested form found in Texas Rule Evid. 902(10)). As long as its filed at least 14 days prior to trial (with notice sent to defendant) the checks should be admissible.

In the situations where that may not apply (or you've missed your deadline), you have two options:

1) have the custodian of records come down and testify (using the predicate out of the manual) -- be advised - banks are not real keen on this

2) have the victim authenticate the check as a true and correct copy and argue best evidence rule to the best of your ability.

Beyond that, I can't think of anything.