The Advocate
Volume 22, No. 5, 
September 2000
Article IX. Authentication and Identification

COMMENTARY

Article IX is a chapter that lists the many ways in which a proponent of documents, photographs, or other non-testimonial objects may introduce them. The chapter tells the proponent to introduce evidence to show that the object is what the proponent claims it is. Questions of relevance must be determined under Article IV, and if the object is a writing containing statements, it must satisfy one of the hearsay exceptions under Article VIII. This Article demonstrates the drafter's intent to avoid wasting time by calling needless witnesses simply to introduce a piece of paper or a photograph.

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) Non-expert testimony on handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of 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 place 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 phone. (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 (20) 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 act of the General Assembly or by rule prescribed by the Supreme Court of Kentucky.

 HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 62; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

The Commentary says that authentication and identification under this rule is a matter of conditional relevancy to be determined under KRE 104(b). In these circumstances, the judge is only making a determination that the proponent of the evidence has introduced enough evidence to allow a reasonable jury to conclude that the object is what it is claimed to be. The standard is preponderance. Commentary, p. 100; Hackworth v. Hackworth, Ky.App., 896 S.W.2d 914, 916 (1995); Bell v. Commonwealth, Ky., 875 S.W.2d 882, 886 (1994); Rogers v. Commonwealth, Ky., 992 S.W.2d 183, 187 (1999).

(c) To authenticate a photo, a party must introduce evidence, through testimony primarily, that it accurately depicts the subject of the photograph. Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 704 (1994).

(d) A replica may be introduced upon a showing that it is similar to the original object. Allen v. Commonwealth, Ky.App., 901 S.W.2d 881, 884 (1995) reproduces a foundation colloquy for replicas.

(e) Certainly a judge should be careful when admitting fungible material about which there is some question. KRE 403 applies in this determination and the judge may exclude evidence like cocaine or some other controlled substance if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading of the jury. The Commentary notes that the judge should take special care where it is likely that the jury may not be willing or able to decide the preliminary issue of identity before assigning probative value to the evidence. [Commentary, p. 101].

(f) Subsection (b) provides a list of illustrations that are purposely called illustrations. Any witness with knowledge that the matter is what it is claimed to be may testify and this may satisfy the foundation burden. Concerning handwriting, any person familiar with the handwriting of another, as long as that person knew the handwriting before the litigation began, may testify concerning "the genuineness" of handwriting. An expert witness may also do so.

(g) Typically, a person will identify an item because it has a distinctive characteristic of one sort or the other. As to voice identification, any person who testifies that she knows a voice may identify it. On telephone conversations, a party may prove the identity of the person on the other end by showing that the call was made to the assigned number and that the circumstances, which may include the other person identifying himself, show that the person answering was the one called. In case of a business, if the call was made to the correct number and the conversation related to business usually conducted over the phone, the foundation burden is met.

(h) Any public records that are recorded or filed as allowed by law in a public office or a public record of any sort kept in a public office may be identified simply from that fact. Ancient documents, as long as there is no reason to suspect anything untoward, may be admitted if they are 20 years or more old at the time offered.

(i) The process illustration deals with situations like photographs taken by automatic cameras in banks. The party must introduce sufficient evidence to show the design of the system, that it was working, and that it is reasonable to expect that the photographs taken were the result of this system working properly.

(j) Finally, a catchall authorizes proof by any other method authorized by law. An example is KRS 422.300 which is a procedure for authenticating medical records without calling the records librarian. Bell v. Commonwealth, Ky., 875 S.W.2d 882, 887 (1994).


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) of this rule, 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 of 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. 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) Official records. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by an official having the legal custody of the record. If the office in which the record is kept is outside the Commonwealth of Kentucky, the attested copy shall be accompanied by a certificate that the official attesting to the accuracy of the copy has the authority to do so. The certificate accompanying domestic records (those from offices within the territorial jurisdiction of the United States) may be made 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 may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of office. The certificate accompanying foreign records (those from offices outside the territorial jurisdiction of the United States) may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of office. A written statement prepared by an official having the custody of a record that after diligent search no record or entry of a specified tenor is found to exist in the records of the office, complying with the requirements set out above, is admissible as evidence that the records of the office contain no such record of entry.

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

(6) Books, newspapers, and periodicals. Printed materials purporting to be books, 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 acknowledgement executed in the manner provided by law before a notary public or other officer authorized by law to take acknowledgements.

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

(10) Documents which self-authenticate by the provisions of statutes or other rules of evidence. Any signature, document, or other matter which is declared to be presumptively genuine by Act of Congress or the General Assembly of Kentucky or by rule of the Supreme Court of Kentucky.

(11) Business records.
 

(A) Unless the sources of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies:
  (i) 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;
(ii) Is kept in the course of the regularly conducted activity; and
(iii) Was made by the regularly conducted activity as a regular practice. (B) A record so certified is not self-authenticating under this paragraph unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.

(C) As used in this paragraph, "certifies" means, with respect to a domestic record, a written declaration under oath subject to the penalty of perjury, and, with respect to a foreign record, a written declaration which, if falsely made, would subject the maker to criminal penalty under the laws of that country. The certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and official position:

 
(i) Of the individual executing the certificate; or
(ii) Of any foreign official who certifies the genuineness of signature and official position of the executing individual or is the last in a chain of certificates that collectively certify the genuineness of signature and official position of the executing individual. A final certification must be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by an officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of office.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 63; amended 1992 Ky. Acts ch. 324, sec. 24; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

This rule allows a party to introduce certain documents without bringing a witness to the hearing to identify them. This type of self-authentication is premised on a belief that there is no good reason to require production of another witness where items have already been identified by some means or the other outside of court. The most important parts for purposes of criminal practice deal with public documents which may be introduced under KRE 902(1) or (2) upon seal and attestation of the keeper of the document. Young v. Commonwealth, Ky., 968 S.W.2d 670, 674 (1998); Sroka-Calvert v. Watkins, Ky.App., 971 S.W.2d 823, 828 (1998). Subsection (4) of the rule supersedes CR 44 and RCr 9.44 by illustrating the means by which a party may introduce official records or show that no such record is found. The keeper of the official records may issue a certificate attesting to the accuracy of the copy of the record (which is allowed as a matter of course under KRE 1005). Munn v. Commonwealth, Ky.App., 889 S.W.2d 49, 51 (1994); Davis v. Commonwealth, Ky., 899 S.W.2d 487, 489 (1995).

The last important self-authentication provision is KRE 902(11) which allows production of business records of the type admissible under KRE 803(6) or 803(7) upon certification by the custodian that the record was made at or near the time of occurrence of the matters involved, either by or from information transmitted by a person with knowledge of the event, is a record kept in the course of a regularly conducted activity, and was made as a regular practice. Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6, 9 (1998); Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 383 (1999). In short, the custodian of business records need not be produced at trial. However, there is a notice requirement which requires the proponent to let the adverse party know that the record is coming in and to produce the record at such time before introduction that the adverse party has a "fair opportunity" to challenge it. For straight business records, the certification must be a "written declaration under oath subject to the penalty of perjury."

Although KRE 902(11) can be used to admit hospital records, better practice might be to follow the procedure under KRS 422.300 to 422.330 which will guarantee the subject of the medical records at least some measure of privacy before trial.

In Skeans v. Commonwealth, Ky.App., 912 S.W.2d 455, 456 (1995), the court held that certified copies of a driver's record could be used to prove the date of a prior offense in DUI cases.

Rule 903 Subscribing witness' testimony unnecessary.

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.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 64; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

This rule does away with the common law requirement that the subscribing witness must appear and testify. The Commentary notes that in will cases, the witnesses to the will must appear and testify unless the will is self-authenticating under Chapter 394 of the statutes.
 


J. David Niehaus
Deputy Appellate Defender
Jefferson District Public Defender Office
200 Civic Plaza
Louisville, KY 40202
Tel: (502) 574-3800; Fax: (502) 574-4052


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