Best Evidence

• Library: Objections Guidebook (2022 Ed.)

Best Evidence

Form of Objection

· Not the best evidence.

· Asks the witness to recite the document orally for the truth of what the document states.

· Insufficient foundation as to unavailability of original or preferred form of secondary proof.

· Document was prepared in anticipation of litigation.

General Rule

· Ordinarily, the terms or the content of a document (or recording, including computer files) must be proved by the production of the original document (or recording). Federal Rule of Evidence 1001 defines a writing, a recording, a photograph, an original, and a duplicate. Missouri has developed caselaw for these terms. No statutory definition exists, but see introduction of evidence by court order for a wire communication, § 490.722, RSMo 2016, and assisted communication, § 490.720, RSMo 2016.

· The best evidence rule does not apply to every fact that must be established at trial. For example, it is not necessary to produce the money that was stolen at trial. Also, the best evidence rule typically applies only if it is necessary to “avoid risks of mistakes or misinterpretation of the term of the writing.” Mo. Evidence Restated §1002, pp. 563–65 (MoBar 6^th ed. 2021).

· Note: Parol testimony of the existence or contents of a document is subject to objection, as is derivative documentation, even if from the custodian. Generally, “best evidence” is not a sound objection to a photo or other reliable record of physical evidence. For a general discussion regarding the foundation for admission of photos, see Kappel v. Prater, 599 S.W.3d 189 (Mo. banc 2020) (discussing foundation and admission of photos, affirming the trial court’s decision to admit photos, and disagreeing with the Eastern District’s decision in the same case, Kappel v. Prater, No. ED 106216, 2019 WL 2261118 (Mo. App. E.D. May 28, 2019)).

Recognized Exceptions

· Certified copies of official records (e.g., statutorily admissible under § 302.312, RSMo 2016, for records of the Missouri Department of Revenue, the Missouri Department of Health and Senior Services, and the Missouri Bureau of Vital Statistics). Prior to the 1995 and 1996 amendments to the statute, it only addressed the best evidence rule. SeeHadlock v. Dir. of Revenue, 860 S.W.2d 335 (Mo. banc 1993), superseded by statute as noted in Mills v. Dir. of Revenue State of Mo., 964 S.W.2d 873 (Mo. App. E.D. 1998). See alsoState v. Pylypczuk, 527 S.W.3d 96, 99–101 (Mo. App. W.D. 2017) (rejecting the State’s argument that § 577.023.16...