Massachusetts subscribes to the common law "best evidence rule."
The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction. See P.J. Liacos, Massachusetts Evidence 746 (7th ed. 1999). See also 2 McCormick, Evidence ? 230 (5th ed. 1999). The rule is a doctrine of evidentiary preference "principally aimed, not at securing a writing at all hazards and in every instance, but at securing the best obtainable evidence of its contents." Id. at ? 237. See Fauci v. Mulready, 337 Mass. 532, 540 (1958), quoting comment on Rule 602 of the ALI Model Code of Evidence ("The 'best evidence' rule, here involved, 'at common law is a preferential, rather than an exclusionary rule'"). Thus, where the original has been lost, destroyed, or otherwise unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made.
As a threshold matter, the proponent must offer evidence sufficient to warrant a finding that the original once existed. See Fauci v. Mulready, supra at 540-543. If the evidence warrants such a finding, the judge must assume its existence, and then determine if the "original had become unavailable, otherwise than through the serious fault of the proponent . . . and that reasonable search had been made for it." Id. at 540. See Proposed Mass. R. Evid. 1004 ("The original is not required, and other evidence of the contents of a writing . . . is admissible if . . . . All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith"). If the judge makes these findings in favor of the proponent, the judge must allow secondary evidence to establish the contents of the lost writing. Fauci v. Mulready, supra at 542.
Under MGL Ch. 106 § 3-308, a negotiable instrument is enforceable if the party seeking enforcement can prove the signature of the party against whom enforcement is sought, and under § 3-309, if the instrument is lost or destroyed then the person seeking enforcement...must prove the terms of the instrument and the person’s right to enforce the instrument, and the court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
In short, a copy of a note is enforceable, assuming that it can be proved that the original once existed. Evidence showing payments against the note by the party against whom enforcement is sought would be sufficient to prove that the copy represents a note that once existed in original form.
Hope this helps.
Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.
Edited by socrateaser on 4/21/2010 at 10:43 PM EST