Guide to Evidence  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.

(b) Original

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.

(c) Duplicate

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). 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 (b).

This subsection is derived from Quinn v. Standard Oil Co., 249 Mass. 194, 201 (1924), and Peaks v. Cobb, 192 Mass. 196, 196–197 (1906).

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).