Section 18.22 Secondary Evidence

• Library: Evidence 2017

B. (§18.22) Secondary Evidence

If the best evidence rule applies and a party is unable to present the document in its original form, secondary evidence is admissible in some circumstances. The party offering secondary evidence must show three things:

1. The original is unavailable.

2. The unavailability is not attributable to any serious fault on the part of the offering party.

3. The secondary evidence is trustworthy.

Luebbert v. Simmons, 98 S.W.3d 72, 76 (Mo. App. W.D. 2003). As to unavailability, the party will have to establish to the satisfaction of the trial court that the original:

· has been lost or destroyed;

· is outside of the jurisdiction;

· is in the possession or control of an adversary;

· is too voluminous or complicated; or

· is otherwise unavailable or inaccessible.

Tobias v. Korman, 141 S.W.3d 468, 473 (Mo. App. E.D. 2004); Walton v. City of Berkeley, 118 S.W.3d 617, 621 (Mo. App. E.D. 2003). Unavailability does not have to be shown beyond the possibility of mistake. Walsh v. St. Louis Nat’l Baseball Club, Inc., 822 S.W.2d 559, 565 (Mo. App. E.D. 1992). Indeed, it appears that document proponents only have to explain why the...