ARTICLE IX.

AUTHENTICATION AND IDENTIFICATION

 

Rule 901 Requirement of authentication or identification. (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.

(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) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) 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.

(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.

(7) 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.

(8) 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 twenty years or more at the time it is offered.

(9) 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.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rules prescribed by the supreme court. [L 1980, c 164, pt of 1]

 

RULE 901 COMMENTARY

 

This rule is identical with Fed. R. Evid. 901, except for the substitution, in subsection (b)(10), of the words, "statute or by other rules prescribed by the supreme court," for the federal rule language, "Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority." As the Advisory Committee's Note to Fed. R. Evid. 901 points out: "Authentication and identification represent a special aspect of relevancy.... Thus a telephone conversation may be irrelevant because of an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved." The note also makes clear that Rule 901's requirement "falls in the category of relevancy dependent upon fulfillment of a condition of act and is governed by the procedure set forth in Rule 104(b)."

Subsection (a): Although the general provision speaks of a "matter in question" and the above example is a telephone conversation, the requirement of authentication is addressed principally to real evidence, that is, tangible objects and things offered in proof. McCormick asserts: "[W]hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident [being litigated]." Simply stated, the authentication requirement forces the proponent to prove, usually by means of extrinsic evidence, that an object is the very thing it purports to be. Exceptions to the requirement of extrinsic evidence are collected in Rule 902 infra.

The requirements of authentication may vary according to the type of evidence offered and the purposes for which it is offered. Authentication may require not only proof of identity but also evidence that the item remains unaltered, McCormick 212. This second requirement may require proof of an unbroken "chain of custody," see State v. Vance, 61 H. 291, 303, 602 P.2d 933, 942 (1979) (drugs and chemicals require chain of custody up to the point of laboratory testing); compare State v. Olivera, 57 H. 339, 344, 555 P.2d 1199, 1202 (1976) (positive identification of inked fingerprint card obviated need for chain of custody).

A different kind of authentication problem arises with respect to photographs, maps, charts, sketches, models, duplicates, or replicas. Authentication for evidence of this kind usually does not address itself to the issue of the identity or source of the item itself but rather to its representational authenticity, requiring foundation testimony or other proof that it is a substantially accurate representation of the thing being depicted. McCormick 213. "On the other hand," continues McCormick, "if there is an absence of testimony that the object to be illustrated ever existed the introduction of a 'duplicate' may foster a mistaken impression of certainty and thus merit exclusion." For this proposition McCormick cites the case of Young v. Price, 50 H. 430, 442 P.2d 67 (1968), which ruled out the replica not because of an "absence of testimony" but because of a substantial question, based on conflicting testimony, about the existence of the original object.

The requirement of authentication applies to documents and writings, see Fed. R. Evid. 901(a), Advisory Committee's Note: "Today, such available procedures as requests to admit and pretrial conference afford the means of eliminating much of the need for authentication or identification.... However, the need for suitable methods of proof still remains, since criminal cases pose their own obstacles to the use of preliminary procedures, unforeseen contingencies may arise, and cases of genuine controversy will still occur."

Subsection (b): The examples incorporated in this subsection derive largely from traditional common law forms of authentication, and are illustrative rather than exclusive. Because the common law has evolved few special-category rules for authentication of chattels, see 7 Wigmore, Evidence 2086 (3d ed. 1942), these examples apply most frequently to authentication of documents, writings, data compilations, and voice communications; however, they may be applicable to other forms of evidence as well.

It should be noted that compliance with the threshold requirement of authentication does not provide an automatic assurance of the admissibility of evidence. A number of other bars, such as hearsay, privilege, or danger of prejudice or confusion, may exclude it.

Subsection (b)(1): The most direct method of authentication of evidence is by testimony of a witness who has some basis extrinsic to the item itself for asserting its authenticity. The foundation requirement for this mode of authentication is proof of the basis for the witness' knowledge. The Advisory Committee's Note to Fed. R. Evid. 901(b)(1) points out that this example "contemplates a broad spectrum ranging from testimony of a witness who was present at the signing of a document to testimony establishing narcotics as taken from an accused and accounting for custody...." Regarding the custody requirement, see State v. Vance, 61 H. 291, 303, 602 P.2d 933, 942 (1979). In Territory v. Hays, 43 H. 58, 65-66 (1958), the court held that a photograph can be authenticated by a witness other than the photographer, upon testimony that "the witness is familiar with the scene and ... that the photograph correctly represents the scene."

Subsection (b)(2): This example, according to the Advisory Committee's Note to Fed. R. Evid. 901(b)(2), "states conventional doctrine as to lay identification of handwriting." See Goo Kim Fook v. Hee Fat, 27 H. 491, 501 (1923); Territory v. Fong Yee, 25 H. 309 (1920).

Subsection (b)(3): This example supersedes a statute, Hawaii Rev. Stat. 622-2 (1976) (repealed 1980) (originally enacted as L 1876, c 32, 63; am L 1972, c 104, 2(b)), which required that the exemplars be "proved to be genuine to the satisfaction of the court." The Advisory Committee's Note to Fed. R. Evid. 901(b)(3), discussing statutes of this sort, says: "While explainable as a measure of prudence ... in the handwriting situation, the reservation to the judge of the question of the genuineness of exemplars and the imposition of an unusually high standard of persuasion are at variance with the general treatment of relevancy which depends upon fulfillment of a condition of fact. Rule 104(b). No similar attitude is found in other comparison situation, e.g., ballistics comparison by jury ... and no reason appears for its continued existence in handwriting cases. Consequently example (3) ... treats all comparison situations alike, to be governed by Rule 104(b)."

Subsection (b)(4): "The characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety," suggests the Advisory Committee's Note to Fed. R. Evid. 901(b)(4). See Territory v. Witt, 27 H. 177 (1923), where, in a case of receiving stolen goods, the court admitted into evidence 15 tires found in the possession of the defendant or in the possession of persons who had recently purchased them from the defendant. In the absence of direct proof that they were the tires stolen, the court admitted them on the basis of distinctive characteristics: they were identical in number, size, and make to those stolen from a warehouse, and tires of that size and make were unobtainable at that time from Honolulu dealers.

Subsection (b)(5): See the Advisory Committee's Note to Fed. R. Evid. 901(b)(5): "Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting." See State v. Clyde, 47 H. 345, 388 P.2d 846 (1964), in which the court ruled that admission of a telephone conversation on the basis of voice identification alone was proper if the witness was acquainted with the voice.

Subsection (b)(6): As the Advisory Committee's Note to Fed. R. Evid. 901(b)(6) suggests, "The cases are in agreement that a mere assertion of his identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation and that additional evidence of his identity is required. The additional evidence need not fall in any set pattern. Thus the content of his statements or the reply technique, under subsection (b)(4) supra, or voice identification under subsection (b)(5), may furnish the necessary foundation." The foundation for outgoing calls is treated in subparagraphs (A) and (B).

Subsection (b)(7): The Advisory Committee's Note to Fed. R. Evid. 901(b)(7) points out that "[p]ublic records are regularly authenticated by proof of custody, without more." See In re Title of Pa Pelekane, 21 H. 175 (1912).

Subsection (b)(8): The traditional common law ancient documents rule is liberalized to include data compilations other than documents, e.g., computer data, electronically stored data, and microfilms. In addition, the common law period of 30 years is reduced to 20 years, consistent with the trend in a number of other jurisdictions, see 7 Wigmore, Evidence 2143 (3d ed. 1942). This represents a change in Hawaii law, see Hulihee v. Heirs of Hueu, 57 H. 312, 315, 555 P.2d 495, 498 (1976). Compare the ancient documents exception to the hearsay rule, Rule 803(b)(16) supra, and the provision for presumptive authenticity of certain documents, Rule 303(c)(12) supra.

Subsection (b)(9): The Advisory Committee's Note to Fed. R. Evid. 901(b)(9) points out that this example "is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X-rays afford a familiar instance."

Subsection (b)(10): A number of statutes and rules of court provide expressly for methods of authentication or for presumptions of prima facie authenticity, e.g., HRCP 44. This rule in no way supersedes such statutory or procedural rules and methods of authentication.

 

Case Notes

 

Witnesses' combined testimony provided "enough foundation" to identify State's exhibit as knife defendant used to stab victims. 83 H. 335, 926 P.2d 1258 (1996).

No abuse of discretion in receiving exhibit, purported assignment of lease, into evidence. 77 H. 320 (App.), 884 P.2d 383 (1994).

There was sufficient evidence to authenticate the 911 recording and establish its admissibility where the 911 dispatcher testified that the dispatcher received the call, the recording equipment was working properly, the State's exhibit was an accurate recording of the call, and that the female voice on the call was dispatcher's voice, and victims testified that they made the call, described certain statements they made during the call, and that recording accurately reflected what happened after victims made the 911 call. 106 H. 517 (App.), 107 P.3d 1190 (2005).

Evidence admitted under rule 106 is subject to the authentication requirement under this rule. 108 H. 89 (App.), 117 P.3d 821 (2005).

Trial court did not abuse its discretion by requiring defendant to produce testimony from physician or physician's custodian of records that physician's report was in fact made by physician and by refusing to admit physician's report for lack of authentication required under this rule where witness' testimony did not authenticate report, there was a lack of evidence attesting to physician's signature on the report, and lack of testimony about any distinctive characteristics of the report. 108 H. 89 (App.), 117 P.3d 821 (2005).

Where exhibit was not authenticated by a citation to a verified source, and without this certification, the document was hearsay and did not fall under any hearsay exception, by applying rules 801 and 902 and this rule, the exhibit was inadmissible and could not be considered by the trial court. 114 H. 56 (App.), 156 P.3d 482 (2006).

 

 

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