§44.6 Analysis

• Jurisdiction: Washington

§44.6ANALYSIS

This section analyzes CR 44 and the corresponding federal rule.

(1)Definition of official record

CR 44 applies only to official records "kept within the United States, or any state, district, commonwealth, territory,...." CR44(a)(l). Although the term is not defined in the rule, there has been little discussion or debate concerning its meaning. Case law defines "official" as "work done by a person in the employment of the Government in the course of the performance of the duties of his position," and "record" as papers, demands, and writings made in the regular course of business. United States v. Aluminum Co. of Am., 1 F.R.D. 71, 75-76 (S.D.N.Y. 1939). An official record need not be a public record that is open to public inspection. Banco de Espana v. Fed. Reserve Bank ofN.Y., 114 F.2d 438, 446 (2d Cir. 1940).

Some commentators have suggested that rather than defining the term, it should be read as applicable to any document that would be admissible under the official records exception to the hearsay rule. 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §2432 (3d ed. 2008 & Supp. 2013). Washington has not, however, adopted Fed. R. Evid. 803(8), the public records exception to the hearsay rule. Instead, ER 803(a)(8) is reserved with a referral to RCW 5.44.040, which creates a statutory exception to the hearsay rule for "copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state or any other state or territory of the United States."

Official records under Fed. R. Civ. P. 44 include the following: foreign birth certificates, United States v. Klissas, 218 F. Supp. 880 (D. Md. 1963); Selective Service files, Kariakin v. United States, 261 F.2d 263 (9th Cir. 1958); weather bureau reports, Flythe v. United States, 405 F.2d 1324 (D.C. Cir. 1968); and conviction records, Maroon v. Immig. & Naturalization Serv., 364 F.2d 982 (8th Cir. 1966). An authenticated statement regarding the contents of an official record is not admissible, except under limited circumstances for foreign documents as provided in Fed. R. Civ. P. 44(a)(2). E.g., Betterly v. United States, 9 F.R.D. 521 (M.D. Pa. 1949) (written statement of Veterans'Administration official that records disclosed that the insured was granted life insurance, but that insurance lapsed for nonpayment of premium prior to last remittance of monthly premium, held not admissible).

Note that CR 44(a) refers only to official records "kept within the United States, or any state, district, or commonwealth, territory, or within a territory subject to the administrative or judicial jurisdiction of the United States ...." Thus, a passport was not admissible as an official record in a criminal proceeding, when the passport had been in the custody of the citizen to whom it was issued. In these circumstances, the court held that the passport did not satisfy the requirement of CR 44(a) that the document be kept within the United States and in the custody of an officer of the government. United States v. Weiss, 491 F.2d 460, 465 (2d Cir.), cert, denied, 419 U.S. 833 (1974).

(2)Procedure for authenticating domestic and foreign official records.

Domestic and foreign official records may be authenticated by the procedures set out below.

(a)Domestic official records

There are two ways to authenticate a domestic official record under CR 44(a)(1). The first is by an official publication. A document is an official publication if it has been printed by authority of the government. Aluminum Co. of Am., 1 F.R.D. at 75. For example, a Structural Engineering Bulletin published by the Federal Housing Authority and publications of the Department of Agriculture are official publications within the rule. Cox v. Wall Twp., 39 N.J. Super. 243, 120 A.2d 779 (1956). A document that on its face appears to be an official publication is authenticated under CR 44 unless the party opposing its admission into evidence shows that it is not in fact an official publication. 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §2433 (3d ed. 2008) (citing Notes of Advisory Committee on Rules—1966 Amendment to Rule 44(a)); Cal. Ass'n of Bioanalysts v. Rank, 577 F. Supp. 1342, 1355 (D. Cal. 1983).

The other method of authenticating a domestic official record under CR 44(a)(1) is by attested copy. Proof by attested copy requires (1) attestation by the officer having legal custody of the record or the officer's deputy and (2) certification by certain specified persons that the attesting party does have custody. State v. Hodge, 11 Wn.App. 323, 327, 523P.2d953, review denied, 84 Wn.2d 1006 (1974). Certification must be made either (1) by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court; or (2) by any public officer having a seal of office or official custody of the seal of the political subdivision and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer's office or the seal of the political subdivision. CR 44(a)(1).

(b)Foreign official records

There are four ways to authenticate a foreign official record.

First, you may authenticate a foreign official record by an official publication, in the same manner as a domestic record. CR 44(a)(2). Official publications are self-authenticating under ER 902(e) as "[b]ooks, pamphlets, or other publications purporting to be issued by public authority."

Second, you may authenticate a foreign official record by an attested copy. CR 44(a)(2). Unlike domestic official records, however, foreign official records need not be attested to by the person having legal custody of the record. Rather, any person authorized by the law of the foreign country to make attestation may do so. The attestation must be certified as to the genuineness of the signature and official position of the attesting person. The certification may be made by a secretary of an embassy or legation, vice-consul general, consul, vice-consul, or consular agent of the United States, or it may be made by a diplomatic or consular official of the foreign country assigned or accredited to the United States. CR 44(a)(2).

Third, the rule permits an alternative "chain-certificate" method of authentication by attested copy. The purpose of the "chain-certificate" method is to prevent the practical difficulties of requiring a United States foreign service officer to certify the authority of the foreign official attesting the copy and the genuineness of the foreign official's signature and his or her official position. Instead, under the "chain-certificate" method, the official record must be attested to by any person authorized by the law of the foreign country to make attestation as set forth above; however, the attestation may be accompanied by a certificate of another foreign official, whose certificate may in turn be certified by that of another foreign official of higher rank, and so on. The chain-certification process continues until a foreign official is reached as to whom the United States foreign service official, or a diplomatic or consular official of the foreign country assigned or accredited to the United States, has adequate information upon which to base a final certification. Notes of Advisory Committee on Rules—1966 Amendment. The "final" certification, however, need only certify the genuineness of signature and the official position of any foreign official whose certificate is in the chain of certificates. CR 44(a)(2). For example, a Russian marriage certificate was held to be admissible when it was authenticated by the provincial director of archives, who stated that he was its legal custodian, and his authentication was confirmed by the chief of the state department of archives, whose authentication was confirmed by the national director of the department of consular administration, whose authentication was confirmed by a United States vice-consul. In re Estate of Nikiporez, 19 Wn.App. 231, 235, 574 P.2d 1204, review denied, 90Wn.2d 1013(1978).

Final certification by a diplomatic officer under both of the above two methods of authentication by attested copy is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which...