Evidence
Professor Cioffi
3/2/2011 – 3/8/2011
Rule 901. Requirement of Authentication or
Identification
[Current Rule]
a)
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.
Rule 901. (cont’d)
[Current Rule]
b)
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:
1)
2)
3)
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.
Rule 901. (cont’d)
[Current Rule]
4)
5)
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.
Rule 901. (cont’d)
[Current Rule]
6)
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.
Rule 901. (cont’d)
[Current Rule]
7)
8)
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.
Rule 901. (cont’d)
[Current Rule]
9)
10)
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.
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.
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.
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:
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.
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.
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.
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.
Rule 902. Self-authentication
[Current Rule]
Extrinsic evidence of authenticity as a
condition precedent to admissibility is not
required with respect to the following:
1)
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.
Rule 902. (cont’d)
[Current Rule]
2)
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.
Rule 902. (cont’d)
[Current Rule]
3)
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.
Rule 902. (cont’d)
[Current Rule]
3)
[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.
Rule 902. (cont’d)
[Current Rule]
4)
5)
6)
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.
Rule 902. (cont’d)
[Current Rule]
7)
8)
9)
10)
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.
Rule 902. (cont’d)
[Current Rule]
11)
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—
A.
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;
Rule 902. (cont’d)
[Current Rule]
B.
C.
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.
Rule 902. (cont’d)
[Current Rule]
12)
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—
A.
B.
C.
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.
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.
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
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.
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)
(B)
it bears the signature of an officer or
employee of an entity named in Rule
902(1)(B); and
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.
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
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.
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.
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.
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.
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.
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).
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.
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.