RULE 902. EVIDENCE THAT IS SELF-AUTHENTICATING

Effective Date: 3/1/2019

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 Sealed and Signed.A document that bears:
(A) 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; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) 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.
(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 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.
(4) Certified Copies of Public Records. A copy of an official record, or a copy of a document that was recorded or filed in a public office as authorized by law, 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 statute, or a rule prescribed by the North Dakota Supreme Court.
(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.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed 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 Statute. A signature, document, or anything else that a statute declares to be presumptively or prima facie genuine or authentic.
(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)(A)-(C), as shown by a certification of the custodian or another qualified person in the form of an affidavit made under penalty of perjury. Not less than 14 days 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.
(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 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).

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902 (11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).

Rule 902 was amended, effective March 1, 1990; March 1, 2014; March 1, 2019.

Rule 902 is based on Fed.R.Ev. 902. It represents a relaxation of the common law requirement of authentication by creating a presumption that certain documents and records are authentic and thereby placing the burden of showing lack of genuineness on the party opposing introduction of the offered evidence. This has been done by statute for certain public documents, records, and certified copies. Rule 902 extends the benefits of this presumption to private documents in which the risk of falsification is slight.

Rule 902 was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.

Paragraphs (11) and (12) were added to the rule, effective March 1, 2014. The intent of these provisions is to allow the foundation for admission of a record of a regularly conducted activity to be established by a certificate made under penalty of perjury rather than by live testimony. Paragraphs (11) and (12) also establish a notice requirement, which is intended to provide an opposing party a fair opportunity to test the adequacy of the foundation provided in the certification.

Paragraphs (13) and (14) were added to the rule, effective March 1, 2019, to provide a means for self-authentication of designated electronic material.

Rule 902 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

SOURCES: Joint Procedure Committee Minutes of January 25, 2018, page 13; April 25-26, 2013, pages 18-21; January 31-February, 2013, pages 23-24; September 27, 2012, page 22-24; March 24-25, 1988, pages 15-16; December 3, 1987, page 15; June 3, 1976, pages 10-12, 14; October 1, 1975, pages 8, 9. Fed.R.Ev. 902; Rule 902, SBAND proposal.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. ch. 31-09; N.D.C.C. §§ 11-18-11, 16-13-11, 31-08-02, 31-08-02.1, 31-08-06, 43-13-12.

Cross Reference: N.D.R.Ev. 301 (Presumptions in a Civil Case Generally) N.D.R.Ev. 803 (Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available as a Witness); N.D.R.Civ.P. 44 (Proving an Official Record); N.D.R.Crim.P. 27(Proof of Official Record). 

Effective Date Obsolete Date
03/01/2019 View
03/01/2014 03/01/2019 View
03/01/1990 03/01/2014 View