§1002 Requirement of Original or Duplicate Original

• Library: Evidence Restated Deskbook (2021 Ed.)

§1002 Requirement of Original or Duplicate Original

To prove the content of a writing or recording, the original or duplicate original writing or recording is required, except as otherwise provided by law.

Notes

The best evidence rule applies when evidence is offered to prove the terms or contents of a writing or recording. Cooley v. Dir. of Revenue, State of Mo., 896 S.W.2d 468, 470 (Mo. banc 1995); Boroughf v. Bank of Am., N.A., 159 S.W.3d 498, 503 (Mo. App. S.D. 2005). It requires production of the original writing or recording unless its absence is satisfactorily accounted for. O'Connell v. Nicolson, 67 Mo. App. 657, 659 (E.D. 1896).

Two mistaken beliefs in regard to the best evidence rule

Two mistaken thoughts often occur in regard to the best evidence rule:

· Every fact must be proved by introducing the best evidence that is available.

· The rule applies to prove the content of every writing.

Mistaken assumption one—every fact must be proved by introducing the best evidence that is available

It is often thought that every fact must be proved by introducing the best evidence that is available. That is not so:

The best evidence rule applies only when the evidence is offered to prove the terms or contents of a writing or recording. The principal reason for the rule is the danger of mistransmission of the contents of a writing when evidence other than the writing itself is offered for the purpose of proving its terms. For example, the exact words used are critically important in the case of deeds, wills or contracts, when even a slight variation of those words may mean a great difference in the rights conferred under the document. A trial court has broad discretion when ruling upon a complaint that proffered documentary evidence violates the best evidence rule, and the court's decision is subject to reversal only in cases of clear abuse.

Pool v. Farm Bureau Town & Country Ins. Co. of Mo., 311 S.W.3d 895, 902–03 (Mo. App. S.D. 2010) (citations and internal quotations omitted). See also Brake v. State, 460 S.W.2d 639, 641 (Mo. 1970), in regard to the defendant's argument that money taken from him should have been produced, rather than permitting an officer to testify on the subject. The Supreme Court stated:

The objection that the money taken from [appellant] should have been produced, rather than permitting the officer's testimony on the subject, is without merit. In Kilrain v. State, 166 Tex.Cr.R. 265, 313 S.W.2d 299, 300 [2], a similar contention was raised and answered: "Appellant next contends that the court erred in permitting the officers to testify as to the money which they found because the money itself was the best evidence.["] In Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272, 273, Judge Lattimore said, "We do not think the man who testifies that he found a horse must produce the horse before the jury before his testimony will be received."

And in State v. McAfee, 50 S.W. 82, 84 (Mo. 1899), a murder case, the Supreme Court stated:

It was not necessary to introduce the shirt [of the victim, Brewer] in evidence in order to show what marks were on it, made by the shooting. This was no more necessary than it was to introduce the dead body of Brewer in order to show what wounds were on it, and the appearance of those wounds. The doctrine of primary and secondary evidence does not extend to such subjects.

Mistaken assumption two—the rule applies to prove the content of every writing

The second incorrect belief is that the rule applies to prove the content of every writing. On the contrary, courts tend to look to whether it makes sense to apply the rule in regard to the writing in question in light of the purpose behind the rule, which is to avoid risks of mistakes or misinterpretations of the terms of the writing, and to not apply the rule when it makes no sense to do so. As the following excerpt from Chevalier v. Director of Revenue, State of Missouri, 928 S.W.2d 388, 392–94 (Mo. App. W.D. 1996), notes, it generally only makes sense to apply the rule in cases involving the operative terms of a substantive written document, such as a deed, will, lease, or contract.

The best evidence rule should be applied with common sense and a distinction should be recognized between the true purposes of the rule and spurious purposes. Otherwise, it becomes an arbitrary tyrant which stands in the way of reasonableness and hinders the search for truth. For this reason, the rule is not applied to every writing. For instance, when [an] officer offers testimony that [a driver] was traveling 45 miles an hour in a 30 m.p.h. zone, he is not required to bring into court the speed limit sign (or the city ordinance setting the speed limit for that location) and offer it into evidence. Nor must an officer testifying as to a license plate number bring the license plate to court as an exhibit to be received in evidence.

. . . .

. . . The best evidence rule does not arise out of a concern that people may prevaricate. If it were otherwise, then the rule should be applied to all kinds of evidence, and not just writings. Rather, it arises out of the concern that even the good faith witness may find it difficult to accurately remember the exact terms of written documents. Of course, there is always a risk that a witness will fabricate testimony. That is a risk that is...