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Evidence

Evidence. Professor Cioffi 3/2/2011 – 3/8/2011. Rule 901. Requirement of Authentication or Identification [Current Rule].

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Evidence

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  1. Evidence Professor Cioffi 3/2/2011 – 3/8/2011

  2. Rule 901. Requirement of Authentication or Identification[Current Rule] • General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

  3. Rule 901. (cont’d)[Current Rule] • Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: • Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. • Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. • Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

  4. Rule 901. (cont’d)[Current Rule] • Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. • Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

  5. Rule 901. (cont’d)[Current Rule] • Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

  6. Rule 901. (cont’d)[Current Rule] • Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. • Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

  7. Rule 901. (cont’d)[Current Rule] • Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. • Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

  8. Rule 901. Authenticating or Identifying Evidence[Effective 12/1/2011] In General. To authenticate or identify an item of evidence in order to have it admitted, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

  9. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (2) Nonexpert Opinion About Handwriting.A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact.A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like.The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

  10. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording —based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

  11. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

  12. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (7) Evidence About Public Records. Evidence that: (A) a record is from the public office where items of this kind are kept; or (B) a document was lawfully recorded or filed in a public office.

  13. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered.

  14. Rule 901. Authenticating or Identifying Evidence (cont’d)[Effective 12/1/2011] (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

  15. Rule 902. Self-authentication[Current Rule] Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: • Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

  16. Rule 902. (cont’d)[Current Rule] • Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

  17. Rule 902. (cont’d)[Current Rule] • Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation.

  18. Rule 902. (cont’d)[Current Rule] • [cont’d] A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

  19. Rule 902. (cont’d)[Current Rule] • Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. • Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. • Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

  20. Rule 902. (cont’d)[Current Rule] • Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. • Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. • Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. • Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

  21. Rule 902. (cont’d)[Current Rule] • Certified Domestic Records of Regularly Conducted Activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record— • was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

  22. Rule 902. (cont’d)[Current Rule] • was kept in the course of the regularly conducted activity; and • was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

  23. Rule 902. (cont’d)[Current Rule] • Certified Foreign Records of Regularly Conducted Activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record— • was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; • was kept in the course of the regularly conducted activity; and • was made by the regularly conducted activity as a regular practice.

  24. Rule 902. (cont’d)[Current Rule] The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

  25. Rule 902. Evidence That Is Self-Authenticating[Effective 12/1/2011] The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (1) Domestic Public Documents That Are Signed and Sealed. A document that bears: (A) a signature purporting to be an execution or attestation; and

  26. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (B) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above.

  27. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (2) Domestic Public Documents That Are Signed But Not Sealed. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(B); and (B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.

  28. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul

  29. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either: (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification.

  30. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (4) Certified Copies of Public Records.A copy of an official record — or a copy of a document that was lawfully recorded or filed in a public office — if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

  31. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical. (7) Trade Inscriptions and the Like.An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

  32. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully signed by a notary public or another officer who is authorized to take acknowledgments. (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law. (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

  33. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6), modified as follows: the conditions referred to in 803(6)(D) must be shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

  34. Rule 902. Evidence That Is Self-Authenticating(cont’d)[Effective 12/1/2011] (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

  35. Rule 903. Subscribing Witness’ Testimony Unnecessary[Current Rule] The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

  36. Rule 903. Subscribing Witness’s Testimony [Effective 12/1/2011] A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

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