Chapter 10 1001 Definitions

• Library: Evidence Guide 2003

§1001 Definitions

§1002 Requirement of original or duplicate original

§1003 Admissibility of duplicates

§1004 Admissibility of other evidence of contents

§1005 Public records (omitted)

§1006 Summaries

§1007 Testimony or written admission of party

§1008 Functions of court and jury

§1001 Definitions

For purposes of this section the following definitions are applicable:

(1) Writings and recordings

“Writings” and “recordings” consist of letters, words, numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs

“Photographs” include still photographs, x-ray films, videotapes, and motion pictures.

(3) Original

An “original” of a writing or recording is the writing or recording itself or, if data are stored in a computer or similar device, any printout or other output readable by sight.

(4) Duplicate original

A “duplicate original” is a counterpart produced by the same impression as the original or from the same matrix or other form of copy signed or otherwise

properly identified and shown to have been intended to constitute an original.

Notes

In Missouri, writings may be admissible as originals or as what are best defined as “duplicate originals”—to be distinguished from other duplicates.

A copy of a document shown to have been intended as the equivalent of an original shares the same admissibility as an original. See State v. McCollum, 377 S.W.2d 379, 384–85 (Mo. 1964); Land Clearance for Redev. Auth., St. Louis v. Zitko, 386 S.W.2d 69, 80 (Mo. banc 1964); see also Schroer v. Schroer, 248 S.W.2d 617, 622 (Mo. 1952). But an unsigned carbon copy is not the equivalent of an original. Dockery v. Mannisi, 636 S.W.2d 372, 375 (Mo. App. E.D. 1982).

Computer printouts have been held admissible over a “best evidence” objection. SAB Harmon Indus., Inc. v. All State Bldg. Sys., 733 S.W.2d 476, 487–88 (Mo. App. W.D. 1987); see also Crowe v. Coursey, 601 S.W.2d 650, 653–54 (Mo. App. S.D. 1980).

In addition, § 569.094, RSMo 2000, provides that, in prosecutions for computer tampering, “computer printouts shall be competent evidence of any computer software, program, or data contained in or taken from a computer, computer system, or computer network.”

See § 362.413, RSMo 2000, which states that “all records, memorandum, writings, entries, prints, representations or combinations thereof, of any act, transaction, occurrence, or event kept or recorded” by any bank or “trust company organized under the laws of this state and every national banking association and every other bank incorporated under the laws of the United States having its place of business in this state . . . shall be deemed to be an original record for all purposes and shall be admissible in evidence in all courts and administrative agencies whether the original is in existence or not.”

See §§901(b)(10) and 902, supra, for many other statutes containing language variously phrased to constitute rules of best evidence, hearsay, identification or authentication, and relevancy. See also Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 55–59 (Mo. banc 1999).

§1002 Requirement of Original or Duplicate Original

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

Notes

Proof of a disputed fact contained in a writing, the content of which is in issue, generally must be by proper offer of the original copy of the document, Straughan v. Murphy, 484 S.W.2d 465, 468 (Mo. 1972), though acceptance of secondary form proof only justifies reversal in a case of “clear abuse” of the trial court’s discretion, Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 925 (Mo. banc 1981). But the rule is limited to documentary evidence, as distinguished from physical evidence. State v. Frith, 525 S.W.2d 568, 569–70 (Mo. App. W.D. 1975); see also Spellmeyer v. Theo. Hiertz Metal Co., 272 S.W. 1068, 1071 (Mo. App. E.D. 1925). The rule is not applicable to a disputed document though its content has some relation to the content of a separate prior document. State v. Rabe, 870 S.W.2d 453, 455 (Mo. App. S.D. 1994).

The rule is inapplicable where the fact to be proved is evidenced in a writing but exists independent of the...