Obsolete Date: 3/1/2014
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 of 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 (i) of the executing or attesting person, or (ii) 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, for good cause shown, may 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 law of the United States or of this State.
(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) Matters Declared by Statute. Any signature, document, or other matter declared by statute to be presumptively or prima facie genuine or authentic.
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.
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).