§ 28.11 Self-Authenticating Documents: FRE 902
| Jurisdiction | United States |
[A] General Rule
Certain types of documents are self-authenticating; they are presumed to be genuine and therefore require no extrinsic proof of authenticity—e.g., an authenticating witness need not testify. The opposing party, of course, may introduce evidence before the jury attacking authenticity.49 A document that fails to satisfy the requirements of Rule 902 may nevertheless achieve admissibility under Rule 901, the general rule on authentication.
[B] Domestic Public Documents with Seal
Under Rule 902(1), a document bearing (1) the seal of a governmental entity or agency and (2) a signature purporting to be an attestation or execution is self-authenticating.50 The rule applies to both federal and state documents. Several other rules also deal with the authentication of domestic public records.51 The most important is Rule 902(4), which provides for the admissibility of certified copies of many records admissible under the present rule.52 A different rule governs foreign public records.53 Note that the Rules of Evidence also recognize hearsay54 and best evidence rule55 exceptions for public records.
[C] Domestic Public Documents without Seal
Domestic public documents without a seal are self-authenticating under Rule 902(2) if: (1) signed an by an officer or employee of an entity named in Rule 902(1)(A), and (2) another public officer, who has a seal and official duties within the same entity, certifies under seal (or its equivalent) that the signer has the official capacity and that the signature is genuine.56 In other words, an authenticating certificate is attached to the original document, and, since the former is under seal, it authenticates the latter.
[D] Foreign Public Documents
Foreign birth and marriage certificates are examples of documents sometimes authenticated under Rule 902(3). A foreign public document is self-authenticating under two conditions.57 First, the document must purport to have been executed or attested by a person, in an official capacity, authorized by the laws of a foreign country to make the execution or attestation—i.e., a foreign official. Second, it must be accompanied by a final certificate of authentication, which may be signed by United States diplomatic personnel serving in the foreign country or by diplomatic personnel of the foreign country assigned or accredited to the United States.58 The court may waive final certification where all the parties have had a reasonable opportunity to investigate the authenticity of the foreign document and good cause is shown.
[E] Certified Copies of Public Records
This is the most important self-authentication rule for official records because it is the one used most frequently.59 Under Rule 902(4), copies of public records, public reports, and recorded documents are self-authenticating under two conditions:60(1) the custodian or other authorized person certifies that the copy is correct, and (2) the copy is accompanied by an authentication certificate complying with Rules 902(1), (2) or (3)61; a federal statute; or a rule prescribed by the Supreme Court.62 Public records do not leave their place of custody. Instead, a copy certified as correct by a government official is used at trial.
[F] Official Publications
Books, pamphlets, or other publications purporting to be issued by a public authority are self-authenticating under Rule 902(5).63 For example, the South Dakota Driver's License Manual, containing a chart estimating blood alcohol levels based upon weight, number of drinks consumed, and rates of alcohol absorption over various periods of time, is self-authenticating under this provision.64
[G] Newspapers and Periodicals
Newspapers or periodicals, including notices and advertisements, are self-authenticating per Rule 902(6). Thus, the N.Y. Times, the Wall Street Journal, or other publications may be admitted in evidence without an authenticating witness.65 Note that the rule deals only with authentication. A newspaper account may be inadmissible because of some other evidentiary rule, such as the hearsay rule.
[H] Trade Inscriptions and the Like
Rule 902(7) rejects the result reached in Keegan v. Green Giant Co.,66 where the plaintiff's attorney failed to lay a proper foundation for a can of peas with the Green Giant label—the big green guy. Under Rule 902, the can would have been self-authenticating: inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating origin, ownership, or control are self-authenticating. Several factors support this rule: the "risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them."67
[I] Acknowledged Documents
Rule 902(8) provides that documents "accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or other officer who...
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