Rule 902  Self-authentication.  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.

     (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), 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.

     (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.  A final certification may be made by a secretary of 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.

     (4)  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) or complying with any statute or rule prescribed by the supreme court.

     (5)  Official publications.  Books, pamphlets, or other publications purporting to be issued by public authority.

     (6)  Newspapers and periodicals.  Printed materials purporting to be newspapers or periodicals.

     (7)  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.

     (8)  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.

     (9)  Commercial paper and related documents.  Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

    (10)  Presumptions under statutes.  Any signature, document, or other matter declared by statute to be presumptively or prima facie genuine or authentic.

    (11)  Certified records of regularly conducted activity.  The original or a duplicate of a domestic or foreign record of regularly conducted activity that would be admissible under rule 803(b)(6), if accompanied by a written declaration of its custodian or other qualified person, certifying that the record was:

          (A)  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;

          (B)  Kept in the course of the regularly conducted activity; and

          (C)  Made by the regularly conducted activity as a regular practice.

          The declaration shall be signed in a manner that, if falsely made, would subject the maker to a criminal penalty under the laws of the state or country where the declaration is signed.  A party intending to offer a record into evidence under this paragraph shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of that intention to all adverse parties, and shall 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. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(9); am L 2002, c 134, §6]

 

RULE 902 COMMENTARY

 

  This rule is identical with Fed. R. Evid. 902 except for the substitution, in paragraph (4), of the words, "statute or rule prescribed by the supreme court," for the federal language, "Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority," and the substitution, in paragraph (10), of "statute" for "Act of Congress."  "Self-authentication," as the name implies, denotes a finding of identity or authenticity of an item based on its mere purport, without recourse to extrinsic evidence.  The present rule restates a number of superseded statutes.  As the Advisory Committee's Note to Fed. R. Evid. 902 points out, "In no instance is the opposite party foreclosed from disputing authenticity."

  Paragraph (1):  The Advisory Committee's Note to Fed. R. Evid. 902(1) says:  "Whether theoretically based in whole or in part upon judicial notice the practical underlying considerations are that forgery is a crime and detection is fairly easy and certain."

  Paragraph (2):  In the case of public documents not under seal, as the Advisory Committee's Note to Fed. R. Evid. 902(2) explains, the potential for forgery is greater than in the case of sealed documents.  "Hence this paragraph of the rule calls for authentication by an officer who has a seal."

  Paragraph (3):  This provision extends the presumption of authenticity to foreign documents that have been attested or certified.  Compare HRCP 44(a)(2) and Ewing v. Janion, 1 H. 79 (134), (136) (1852).

  Paragraph (4):  Consistent with the practice in most jurisdictions, Hawaii has long recognized the procedure of authenticating public records by certification.  A variety of statutes establish certification procedures for specific types of public records, see, e.g., Hawaii Rev. Stat. §§502-81, 572-13(c) (1976, Supp. 1979).  Court procedural rules are in accord, see HRCP 44(a); HRCrP 27.

  The requirement for proper certification of copies of such records has been affirmed by the Hawaii courts.  See, e.g., Territory v. Branco, 42 H. 304 (1958), in which the court barred admission of photostatic copies of the minutes of the board of public lands because the accompanying certificate of authenticity was not signed by the officer who had legal custody of the records.

  It should be noted that certifications are, in themselves, documents requiring authentication independently of the records to which they are appended.  They may be received as self-authenticating when prepared and offered in conformity with paragraph (1), (2), or (3) of this rule, or when they are accorded a presumption of authenticity by statute, consistent with paragraph (10) of this rule.

  Paragraph (5):  This rule consolidates the provisions of a number of superseded Hawaii statutes.  As the Advisory Committee's Note to Fed. R. Evid. 902(5) points out, this paragraph "does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility."

  Paragraph (6):  The circumstantial guarantee of authenticity of newspapers and periodicals is sufficiently great to justify a preliminary assumption of admissibility.  In Territory v. Sur, 36 H. 332, 340 (1952), the court approved admission of newspaper accounts of football games for the purpose of proving that the games were played on a specific date.

  Paragraph (7):  The issue of self-authentication of mercantile labels, inscriptions, and trademarks has not been addressed in Hawaii; however, it has found increasing support in other jurisdictions, see Fed. R. Evid. 902(7), Advisory Committee's Note, and the circumstantial guarantee of authenticity of such evidence is great.

  Paragraph (8):  See Fed. R. Evid. 902(8), Advisory Committee's Note:  "In virtually every state, acknowledged title documents are receivable in evidence without further proof....  If this authentication suffices for documents of the importance of those affecting titles, logic scarcely permits denying this method when other kinds of documents are involved."

  Paragraph (9):  This provision affirms the authentication provisions for negotiable instruments and commercial paper, as defined in the Uniform Commercial Code.  Pertinent statutes include Hawaii Rev. Stat. §490:1-202, which provides that various types of commercial documents issued by a third party are prima facie evidence of both their own authenticity and of the facts stated in them; §490:3-307, which establishes the presumption that signatures on a negotiable instrument are genuine or authorized; and §490:3-510, which establishes self-authenticating evidence of dishonor of a negotiable instrument.  See Akamine and Sons, Ltd. v. American Security Bank, 50 H. 304, 440 P.2d 262 (1968).

  Paragraph (10):  Consistent with the parallel provision in Rule 901(b)(10) supra, this paragraph affirms the validity of other statutory provisions for self-authentication.  Nothing in this rule should be construed to supersede such provisions.

 

RULE 902 SUPPLEMENTAL COMMENTARY

 

  The Act 134, Session Laws 2002 amendment adds paragraph (11) to the collection of self-­authenticating documents of Rule 902, and thus implements the certification procedure established in the 2002 amendment to Rule 803(b)(6) ("records of regularly conducted activity").  The Federal Rules of Evidence and Uniform Rules of Evidence have similarly modified Rule 902.

 

Case Notes

 

Records of regularly conducted activity.

  State did not establish a sufficient foundation to admit speed check card as a business record under HRE rule 803(b)(6) where record did not (1) include a certification that complies with paragraph (11) or other statute permitting certification, (2) reflect that officer was testifying as a custodian of the speed check card, or (3) officer's testimony did not adequately establish that there were other indicia of reliability.  122 H. 354, 227 P.3d 520 (2010).

  Where an exhibit contained an impressed seal of the circuit court, a certification, and the signature of the court clerk, the exhibit met the requirements of a self-authenticating document under paragraphs (1) and (4).  133 H. 102, 324 P.3d 912 (2014).

  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 901 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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