§ 28.08 ANCIENT DOCUMENTS: FRE 901(B)(8)

• Jurisdiction: United States

§ 28.08. ANCIENT DOCUMENTS: FRE 901(b)(8)

This rule provides a method for authenticating ancient documents, including computer data compilations.⁴⁰ Authentication is accomplished by showing that (1) the document's appearance is not suspicious, (2) it was found in a place natural for this type of document, and (3) it is 20 years or older. The common law time period was 30 years.

A different provision, Rule 803(16), recognizes a hearsay exception for ancient documents. Although the rule originated as an authentication rule, not as a hearsay exception, a number of jurisdictions recognized such an exception. The rationale underlying the exception is that the "danger of mistake is minimized by authentication requirements, and age affords assurance that the writing antedates the present controversy."⁴¹ Moreover, few witnesses will be available after a 20-year time lapse.

³⁸ Fed. R. Evid. 803(8) (public records); Fed. R. Evid. 803(9) (vital statistics).

³⁹ Fed. R. Evid. 1005.

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Notes:

^[40] See United States v. Firishchak, 468 F.3d 1015, 1021 (7th Cir. 2006) (authenticating WWII

documents: "Dr. Pohl, an expert who has done extensive archival research on the District Galicia, testified that there was no suspicion regarding the documents' authenticity and that they were housed in a state regional archive where one would expect to find such documents. He also testified regarding the age of the documents, stating that each document dated from between 1942 and 1944."); United States v. Demjanjuk, 367 F.3d 623, 630 (6th Cir. 2004) (WWII concentration camp service identity card...