Guide to Evidence Article X: Contents of writings and records
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Section 1001. Definitions that apply to this article
The following definitions apply under this Article:
(a) Writings and Records
“Writings” and “records” are documents that consist of letters, words, numbers, or their equivalent. Photographs, composite pictures, tape recordings, videotapes, and digital images are not writings or records.
An “original” of a writing or record means the writing or record itself or any copy intended to have the same effect by the person who executed or issued it.
A “duplicate” is a copy of a writing or record that is not intended to be an original, the copies being no more than secondary evidence of the original.
Subsection (a). This subsection is derived from Commonwealth v. Duhamel , 391 Mass. 841, 844 (1984) (tape recording); Commonwealth v. Weichell , 390 Mass. 62, 77 (1983), cert. denied, 465 U.S. 1032 (1984) (photographs); Commonwealth v. Balukonis , 357 Mass. 721, 725 (1970) (composite pictures); Smith v. Palmer , 60 Mass. 513, 520–521 (1850) (best evidence); and Commonwealth v. Leneski , 66 Mass. App. Ct. 291, 294 (2006) (videotapes or digital images).
This section is not as extensive as Fed. R. Evid. 1001(1) and Proposed Mass. R. Evid. 1001(1), both of which cover recordings and photographs. “The best evidence rule is applicable to only those situations where the contents of a writing are sought to be proved” (citation omitted). Commonwealth v. Balukonis, 357 Mass. at 725. “[T]his rule is usually regarded . . . as not applicable to any objects but writings. . . . So far, then, as concerns objects not writings, a photographic representation could be used without accounting for the original.” Id. at 725, quoting Wigmore, Evidence § 796 (3d ed. 1940). See also Commonwealth v. McKay , 67 Mass. App. Ct. 396, 402–403 (2006).
Subsection (c). This subsection is derived from Augur Steel Axle & Gearing Co. v. Whittier , 117 Mass. 451, 455 (1875) (as to letter-press copy of an original letter in possession of adverse party, “[t]here was sufficient foundation for the admission of secondary evidence of the contents of the letter”). See also Meehan v. North Adams Sav. Bank , 302 Mass. 357, 363–364 (1939) (admissibility of copy of a letter upheld, not to prove its contents, but to prove the opponent had received the original letter).
Section 1002. Requirement of original (Best Evidence Rule)
An original writing or record is required in order to prove its content unless these sections, a statute, or the common law provides otherwise.
This section is derived from Commonwealth v. Ocasio , 434 Mass. 1, 6 (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 (1892); Commonwealth v. Silva , 61 Mass. App. Ct. 28, 35–37 (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 (1970). See Commonwealth v. DeJesus , 87 Mass. App. Ct. 198, 201 (2015) (original currency not required where only question was whether photocopy of bills used in undercover operation matched bills found in defendant’s pocket after drug transaction). The rule does not apply to photographs, Commonwealth v. Weichell , 390 Mass. 62, 77 (1983), cert. denied, 465 U.S. 1032 (1984); composite pictures, Commonwealth v. Balukonis, 357 Mass. at 725; tape recordings, Commonwealth v. Duhamel , 391 Mass. 841, 844 (1984); or videotapes or digital images, Commonwealth v. Leneski , 66 Mass. App. Ct. 291, 294 (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 (2008); Commonwealth v. Duhamel, 391 Mass. at 844–845; Commonwealth v. Balukonis, 357 Mass. at 725–726; Commonwealth v. Leneski, 66 Mass. App. Ct. at 294; Henderson v. D’Annolfo , 15 Mass. App. Ct. 413, 428–429 (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. “Concerns regarding the completeness or production of the image go to its weight and not its admissibility.” Id.
“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.” (citations omitted). Commonwealth v. Salyer , 84 Mass. App. Ct. 346, 356 n.10 (2013). 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.
Section 1003. Admissibility of duplicates
Where the original has been lost, destroyed, or otherwise made unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made as outlined in Section 1004.
This section is taken nearly verbatim from Commonwealth v. Ocasio , 434 Mass. 1, 6 (2001).
“As a threshold matter, the proponent must offer evidence sufficient to warrant a finding that the original once existed. If the evidence warrants such a finding, the judge must assume its existence, and then determine if the original had become unavailable, otherwise than through the serious fault of the proponent and that reasonable search had been made for it.” (Citation, quotation, and ellipsis omitted.)
Id. at 6–7.
A number of statutes make duplicates admissible on the same terms as originals. See, e.g., G. L. c. 233, § 76 (attested-to records of governmental departments); G. L. c. 233, § 76A (properly authenticated copies of documents filed with the Securities and Exchange Commission); G. L. c. 233, § 77 (copies of books, etc., of trust companies and banks); G. L. c. 233, § 79A (duly certified copies of public, bank, insurance, and hospital records); G. L. c. 233, § 79D (duly certified copies of newspapers made by photographic process and deposited in certain public and college libraries); G. L. c. 233, § 79E (reproductions made in the regular course of business); G. L. c. 233, § 79K (duplicate of a computer data file or program file unless issue as to authenticity or unfair to admit). See also G. L. c. 233, § 78 (court “may” order originals).
Section 1004. Admissibility of other evidence of contents
An original is not required, and other evidence of the content of the writing or record is admissible, if
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing or record is not closely related to a controlling issue.
This section is taken from Fed. R. Evid. 1004 and Proposed Mass. R. Evid. 1004, both of which reflect Massachusetts practice.
Subsection (a). This subsection is derived from Commonwealth v. Ocasio , 434 Mass. 1, 7 (2001), quoting Proposed Mass. R. Evid. 1004(a). See also Old Colony Trust Co. v. Shaw , 348 Mass. 212, 219 (1964); Fauci v. Mulready , 337 Mass. 532, 540–542 (1958); Joannes v. Bennett , 87 Mass. 169, 172–173 (1862); Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 520–521 (1985).
“[I]n order to permit proof by secondary evidence of the contents of [a lost original], the trial judge must make preliminary findings that the original had become unavailable, otherwise than through the serious fault of the proponent . . . and that reasonable search had been made for it.” Fauci v. Mulready, 337 Mass. at 540.
Subsection (c). This subsection is derived from Fisher v. Swartz , 333 Mass. 265, 271 (1955) (defendant had an original in court and refused to produce it on plaintiff’s request so secondary evidence was admitted); Commonwealth v. Slocomb , 260 Mass. 288, 291 (1927) (when pleadings disclose proof of a document that will be necessary at trial, no further notice is necessary, and if the party fails to produce the document, secondary evidence is admissible). Cf. Cregg v. Puritan Trust Co., 237 Mass. 146, 149–150 (1921) (“The failure of the defendant to produce its books and accounts when summoned by a subpoena duces tecum conferred authority on the court to compel that production by proper process, and authorized the plaintiff to introduce parol evidence of the contents of such books and records. A like result follows upon the failure of a party at the trial to produce on reasonable demand writings which are material to the issue. The failure to produce documents on demand at a trial or on the subpoena duces tecum, is not in itself evidence of the alleged contents of such documents.” [Citations omitted.]).
Subsection (d). This subsection is derived from Smith v. Abington Sav. Bank , 171 Mass. 178, 184 (1898). See also Commonwealth v. Borasky , 214 Mass. 313, 317 (1913) (defendant’s objection to testimony of physician, who performed autopsy, on the ground that the record was the best evidence, was properly overruled as “[t]he testimony of the witness who was present and observed the condition revealed by the autopsy was admissible”); Beauregard v. Benjamin F. Smith Co. , 213 Mass. 259, 264 (1913) (sheriff was permitted to testify as to where he served the defendant without producing the official return of service); Eagle Bank at New Haven v. Chapin , 20 Mass. 180, 182–183 (1825) (parol evidence of a notice to an endorser admissible without calling on the party to produce the written notice received by him).
Section 1005. Official records
(1) Domestic. An official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by that officer’s deputy. If the record is kept in any other State, district, Commonwealth, territory, or insular possession of the United States, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, any such copy shall be accompanied by a certificate that such custodial officer has the custody. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the office.
(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or a copy thereof, attested by a person authorized to make the attestation and accompanied by a final certification as to the genuineness of the signature and official position (A) of the attesting person or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (A) admit an attested copy without final certification or (B) permit the foreign official record to be evidenced by an attested summary with or without a final certification.
(b) Lack of Record
A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in Subsection (a)(1) of this section in the case of a domestic record or complying with the requirements of Subsection (a)(2) of this section for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.
(c) Other Proof
This section does not prevent the proof, by any other method authorized by law, of the existence of, or the lack of, an official record, or of entry, or lack of entry therein.
Section 1006. Summaries to prove content
The proponent may use a summary, chart, or the like to prove the content of voluminous writings or records that cannot be conveniently examined in court. The proponent may make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
This section is derived from Commonwealth v. Greenberg , 339 Mass. 557, 581–582 (1959), and the cases cited in Section 611(a), Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court.
“[I]n a trial embracing so many details and occupying so great a length of time . . . during which a great mass of books and documents were put in evidence, concise statements of their content verified by persons who had prepared them from the originals were the only means for presenting to the jury an intelligible view of the issues involved” (quotation and citations omitted).
Id. at 582.
“[C]are must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent’s proof” (quotations and citations omitted). Welch v. Keene Corp. , 31 Mass. App. Ct. 157, 165–166 (1991). The witness presenting the summary is not permitted to state deductions or inferences, but may testify as to the results of his or her computations. Commonwealth v. Greenberg, 339 Mass. at 582. The court may order that the original be produced. Cf. Cornell-Andrews Smelting Co. v. Boston & P.R. Corp. , 215 Mass. 381, 390–391 (1913).
For a thoughtful discussion of Section 1006, its relation to Fed. R. Evid. 1006, and its application to summaries of evidence, see Commonwealth v. Wood , 90 Mass. App. Ct. 271 (2016), which is instructive. There, the Commonwealth, as part of its case against a defendant on trial for assault with a deadly weapon, showed the jury a PowerPoint presentation that was a “compilation of various pages chosen from previously-admitted exhibits.” Id. at 276. The presentation included cellular phone records; condensed versions of text messages between the defendant, the victim, and a third party; call logs; and maps showing the victim’s movement based on data from his GPS tracking bracelet. Id. The Appeals Court held that because the presentation selectively presented excerpts of other exhibits in evidence in such a way that it served to both bolster the Commonwealth’s case and rebut the defendant’s defense, it was “not merely a neutral summary. It was ‘more akin to argument than evidence since [it] organizes the jury’s examination of testimony and documents already admitted in evidence.’” Id. at 277, quoting United States v. Bray , 139 F.3d 1104, 1111 (6th Cir. 1998). However, the court found that although the presentation was erroneously admitted, its admission did not prejudice the defendant because “all of the material in [the presentation] was previously admitted in evidence and . . . added little to the Commonwealth’s case and detracted little from the defendant’s theory at trial.” Id. at 282.
Section 1007. Testimony or statement of party to prove content
The proponent may prove the content of a written statement of the party against whom the evidence is offered without producing or accounting for the original.
Section 1008. Functions of judge and fact finder
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 (1958), and Dana v. Kemble , 36 Mass. 112, 114 (1837). See also Commonwealth v. Ocasio , 434 Mass. 1, 6–7 (2001); Old Colony Trust Co. v. Shaw , 348 Mass. 212, 219 (1964); Capitol Bank & Trust Co. v. Richman , 19 Mass. App. Ct. 515, 520–522 (1985); Buker v. Melanson , 8 Mass. App. Ct. 325, 330–331 (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.
“[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 (1890).