To prove the content of a writing or recording, but not a photograph, the original writing or recording is required, except as otherwise provided in these sections, or by common law or statute.
This section is derived from Commonwealth v. Ocasio, 434 Mass. 1, 6, 746 N.E.2d 469, 474 (2001), where the court explained as follows:
“The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction. The rule is a doctrine of evidentiary preference principally aimed, not at securing a writing at all hazards and in every instance, but at securing the best obtainable evidence of its contents. Thus, where the original has been lost, destroyed, or is otherwise unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made.” [Quotation and citations omitted; emphasis omitted.]
See also Commonwealth v. Stevens, 155 Mass. 291, 292, 29 N.E. 508, 509 (1892); Commonwealth v. Silva, 61 Mass. App. Ct. 28, 35–37, 807 N.E.2d 170, 177–178 (2004) (written inventory search policy of police department is the best evidence of that policy and such documents should be offered in evidence to prove it exists).
The best evidence rule does not apply where the writing is so simple that the possibility of error is negligible. See Commonwealth v. Blood, 77 Mass. 74, 77 (1858).
“The best evidence rule [applies] to only those situations where the contents of a writing are sought to be proved.” Commonwealth v. Balukonis, 357 Mass. 721, 725, 260 N.E.2d 167, 170 (1970). The rule does not apply to photographs, Commonwealth v. Weichell, 390 Mass. 62, 77, 453 N.E.2d 1038, 1047 (1983), cert. denied, 465 U.S. 1032 (1984); composite pictures, Commonwealth v. Balukonis, 357 Mass. at 725, 260 N.E.2d at 171; tape recordings, Commonwealth v. Duhamel, 391 Mass. 841, 844, 464 N.E.2d 1352, 1355 (1984); or videotapes or digital images, Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294, 846 N.E.2d 1195, 1198–1199 (2006). The introduction of such evidence is subject to other requirements, i.e., relevancy and authentication. Id.
The admission of photographs, composite drawings, tape recordings, or digital images is within the discretion of the trial judge, provided that the evidence is accurate, similar enough to circumstances at the time in dispute to be relevant and helpful to the jury in its deliberations, and its probative value outweighs any prejudice to the other party. See Renzi v. Paredes, 452 Mass. 38, 52, 890 N.E.2d 806, 817 (2008); Commonwealth v. Duhamel, 391 Mass. at 844–845, 464 N.E.2d at 1355; Commonwealth v. Balukonis, 357 Mass. at 725–726, 260 N.E.2d at 170–171; Commonwealth v. Leneski, 66 Mass. App. Ct. at 294, 846 N.E.2d at 1198–1199; Henderson v. D’Annolfo, 15 Mass. App. Ct. 413, 428–429, 446 N.E.2d 103, 113 (1983). A witness may testify that a photograph or digital image is substantially similar to the original as long as the witness is familiar with the details pictured even though the witness is not the photographer. Renzi v. Paredes, 452 Mass. at 52, 890 N.E.2d at 817. “Concerns regarding the completeness or production of the image go to its weight and not its admissibility.” Id., 890 N.E.2d at 818.
“The best evidence rule does not forbid the use of ‘copies’ of electronic records (including e‑mails and text messages and other computer data files), because there is no ‘original’ in the traditional sense.” Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10, 996 N.E.2d 488, 497 n.10 (2013) (citations omitted). Cf. G. L. c. 233, § 79K. “However, oral testimony designed to prove the contents of an electronic record is barred for the same reasons as those underlying the best evidence rule.” Commonwealth v. Salyer, 84 Mass. App. Ct. at 356 n.10, 996 N.E.2d at 497 n.10.