Before secondary evidence of the contents of a writing or record may be admitted, the proponent must offer evidence sufficient to warrant a finding that an original once existed. If the evidence warrants such a finding, the judge must assume its existence and then determine if the original is unavailable, not through the serious fault of the proponent, and if reasonable search has been made for it. If the judge makes these findings in favor of the proponent, the judge must allow secondary evidence to establish the contents of the original writing or record. Once the secondary evidence is admitted, it is for the trier of fact to determine the weight, if any, to give the secondary evidence.
This section is derived from Fauci v. Mulready, 337 Mass. 532, 540–542, 150 N.E.2d 286, 291–293 (1958), and Dana v. Kemble, 36 Mass. 112, 114 (1837). See also Commonwealth v. Ocasio, 434 Mass. 1, 6–7, 746 N.E.2d 469, 474 (2001); Old Colony Trust Co. v. Shaw, 348 Mass. 212, 219, 202 N.E.2d 785, 790–791 (1964); Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 520–522, 475 N.E.2d 1236, 1240–1241 (1985); Buker v. Melanson, 8 Mass. App. Ct. 325, 330–331, 393 N.E.2d 436, 439–440 (1979). If secondary evidence is admitted, it is then up to the trier of fact to decide, when it is an issue, whether the document ever existed. Fauci v. Mulready, 337 Mass. at 542, 150 N.E.2d at 292.
“[T]here are no degrees in secondary evidence, so that a party authorized to resort to it is compelled to produce one class of such evidence rather than another.” Commonwealth v. Smith, 151 Mass. 491, 495, 24 N.E. 677, 678 (1890).