By: Keith Jackson
RILEY & JACKSON, P.C.
National Business Institute Seminar
July 30, 2009
As with all evidence, documentary evidence must be material and relevant, and it must comply with applicable rules of evidence. Documentary evidence is also subject to the requirement that it be authenticated in many instances, and it must comply with the now misnamed Best Evidence Rule. There is also a required procedure for offering and admitting documentary evidence that we will discuss.
A. ESTABLISHING AUTHENTICITY OF A DOCUMENT
The requirements for authenticity are set forth in Ala. R. Evid. 901. Generally, authenticity is established by evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 901(a). Both lay and expert witness testimony are allowed to authenticate a document. This authentication may be provided by a witness with knowledge of the fact that a document is what it claims to be. Id. at 901(b)(1).
Rule 901 offers several illustrations as to when authenticity would comply with the requirements of Rule 901. Included among those are non-expert opinions on handwriting, voice identification, evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office is from the office where items of this nature are kept, and several others. Although not an issue regarding authenticity, it should be noted that, when a party introduces part of a writing or a recorded statement, the adverse party may require the introduction at that time of any other part of the writing or statement that should in fairness be considered contemporaneously. Ala. R. Evid. 106.
Rule 902 provides a list of 10 self-authenticating documents. These documents are as follows:
- Domestic public documents under seal;
- Domestic public documents not under seal;
- Foreign public documents;
- Certified copies of public records;
- Official publications, such as books, pamphlets, or other publications purported to be issued by a public authority;
- Newspapers and periodicals;
- Trade inscriptions;
- Acknowledged documents;
- Commercial paper and related documents; and
- Signatures, documents, or other matters declared by statute, whether state or federal, to be presumptively genuine or authentic.
For any such documents, there is no need to introduce extrinsic evidence of authenticity. These documents are considered self-authenticating on their face.
Despite this broad list, numerous documents still must be authenticated. Private writings, letters, business records, annuity and mortality tables, and ancient documents must be authenticated, among many other documents.
For private writings other than those that are self-authenticating as set forth in Rule 902, these are to be authenticated pursuant to Ala. R. Civ. P. 44(i). Pursuant to this rule, “[t]he execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of attesting witnesses. In all other cases, the subscribing witness must be produced, if possible, to prove execution of private documents, unless the document is an ancient writing which proves itself, or is self-proving or properly acknowledged, or is an official bond required by law to be approved or tested by a particular functionary, or is only incidentally or collaterally material to the case.” This authentication may be accomplished either by eyewitness testimony or by circumstantial evidence.
Court orders and other court records may be authenticated under two different rules. Rule 902 provides that domestic public documents under seal bearing a “signature supporting to be an attestation or execution” are admissible. Ala. R. Evid. 902(1). This is similar to the provisions of Ala. R. Civ. P. 44(a), which provides that domestic official records “may be evidenced by an official publication thereof or by a copy attested by a person purporting to be the officer having the legal custody of the record, or by the officer’s deputy.” This would include court records.
Records of counties and municipalities may also be authenticated under two rules. The Rule 902 provision for domestic public documents discussed above applies to records of counties and municipalities. Additionally, 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, that are certified as correct by the custodian or other person authorized to make the certification may be authenticated pursuant to various sub-parts of rule 902. Such documents may also be authenticated under Ala. R. Civ. P. 44(a) as discussed with court records above.
Business records and records of regularly conducted activities provide another category of documents where there are two rules applying to authentication. Rule 803(6) is often discussed in the business records context because of the well-known hearsay exception for business records, but the rule by its terms states that such records are admissible if authenticated. The authentication required under this rule is testimony of “the custodian or other qualified witness” that the records were “kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make” the record. An additional type of business record is the category of “commercial paper and related documents” governed by Ala. R. Evid. 902(9). This rule provides that “commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law” are self-authenticating.
The authentication provision for a business record contemplated by Ala. R. Evid. 803 is similar but not identical to Ala. R. Civ. P. 4(h). This rule provides that any “writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence and proof of said act, transaction, occurrence or event if it was made in the regular course of any business, profession, occupation, or calling of any kind . . . .” The rule then goes into greater detail and should be referenced on any issue regarding the authenticity of a business record.
Hospital records do not require authentication in court if they are certified. Ala. Code §12-21-5. The certification must be in the form provided by Ala. Code §12-21-7.
A more interesting situation is presented when a party needs to authenticate a letter. Letters may be authenticated in a number of ways, including by proof of the handwriting of the letter. Authenticity may also be proven under certain circumstances by less direct evidence, such as particular details of the spelling that is used, the style of composition, the type of paper used, the envelope used, the place and circumstances of the letter’s mailing, and the fact that the contents written in the letter would only have been known by the person said to have written the letter. Particularly relevant for cases in which businesses are parties, the presence of a letterhead on a document purportedly from a person or a business is an important fact in determining whether the document is authentic. Royal Ins. Co. of America v. Crowne Investments, Inc. 903 So. 2d 802 (Ala. 2004).
One of the more common documents parties in civil actions attempt to use, other than business records and medical records, are mortality and annuity tables. Under Alabama law, the Superintendent of Insurance must deliver to the Secretary of State the current American standard ordinary mortality tables. The Secretary of State must then have the tables printed in the bound volume of the Acts of the Legislature. Ala. Code § 35-16-3. Such mortality tables are then to be received in court as evidence of the facts stated in the tables. Id. at § 35-16-4(a).
Sometimes, however, the mortality tables selected by the Superintendent of Insurance may not be appropriate for a particular lawsuit. A Plaintiff who has a decreased life expectancy and who has claimed a diminished earning capacity may not necessarily be able to claim, at least legitimately, lost future wages through the age of 65, for example. In such a case, one party or both may wish to introduce other mortality tables. Notwithstanding the statutory provisions regarding mortality tables discussed above, courts may take judicial knowledge of mortality tables. Ala. Code § 35-16-4(b). Privately prepared mortality tables may be authenticated and admitted in Court.
This presentation does not attempt to summarize the authenticity requirements of all types of documents, but we have touched upon the more common issues likely to be confronted by the practitioner. Authentication rules also exist for authenticating ancient documents, telegrams, family Bibles and church records, foreign court records, etc.
B. THE BEST EVIDENCE RULE – QUICKLY
To suggest that Alabama has a best evidence rule would be an error – it does not. Rules 1001-1003 of the Alabama Rules of Evidence supersede the common law best evidence rule. Rule 1001 addresses “writings”, which are defined as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, or other form of data compilation.” Id. at 1001(1). The rule then defines an “original” as “the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original’.” Id. at 1001(2). A “duplicate” under the rule is “a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, or by equivalent technique which accurately reproduces the original.” Id. at 1001(3).
Rule 1002 then replaces the former best evidence rule in Alabama by providing that “[t]o prove the content of a writing, the original writing is required, except as otherwise provided by statute, these rules, or by other rules applicable in the courts of this state.” This seemingly clear rule is then tweaked by Rule 1003, which provides that “[a] duplicate is admissible to the same extent as an original unless 1) a genuine question is raised as to the authenticity of the original or 2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” In other words, an original is only required where the genuineness or accuracy of a copy is raised. Essentially the same rule is found in Ala. R. Civ. P. 44(d), which followed the old best evidence rule.
There is substantial case law applying the old best evidence rule that will offer guidance to the practitioner. As an over-simplification of the issue, the rule is generally invoked to prohibit a witness from testifying to the terms of a writing if the writing is unavailable unless the witness can show that it is unavailable for some reason other than the witness’s own fault. We have never had an issue at trial with the best evidence rule and, in those few instances where we had a concern about the other side’s evidence or a concern may have been voiced about our evidence with respect to the availability of originals, these issues were worked out among counsel well before the start of trial.
C. ESTABLISHING THE PROPER FOUNDATION
Laying a foundation for the admissibility of a document is not difficult, but certain steps must be followed. First, the attorney should have the court reporter mark the document for purposes of identification as the next successive exhibit to be offered by the party. The attorney can then embark on laying the foundation with specific references to the exhibit number so that the record is clear and appellate courts could easily identify what document was at issue when the attorney was attempting to lay the foundation of admissibility.
Unless the document is self-authenticating or authentication has been agreed among the parties, the first step in laying a foundation for admissibility is to go through the authentication process discussed above. This can typically be done either with live or deposition testimony. This may also be done by showing to the Court that the document is certified in a manner that makes authentication unnecessary in accordance with the rules discussed above, although we have not yet seen a situation in which a properly certified document cannot be authenticated by agreement among counsel, thus making a discussion of this fact with the Court unnecessary.
Establishing authenticity is only the first step in laying the foundation for document admissibility, however. Experience tells us that most parties for the sake of convenience will agree during discovery that documents produced by corporate parties, medical records, and other documents that have origins that the parties do not call into question may be authenticated by stipulation well before trial. Do not allow this to lull you into a sense that the only remaining issue is relevance of the document, however. There are any number of potential objections you must foresee in laying the foundation for admissibility, depending on the particular document you are attempting to introduce.
Once authentication is established, you must be prepared to establish that the document either is not hearsay or falls within an enumerated exception and that the document is both material and relevant to the case. Although best evidence objections are rare, you should also be prepared for such an objection. We suggest that you explore whether such an objection will be made to any documents prior to trial and attempt to resolve any such issues either with opposing counsel or bring those issues to the attention of the Court prior to any attempt to introduce the document when the jury is present.
Although not discussed as often, there is also a potential objection that the document you are attempting to introduce into evidence is not connected to a party or issue in the case. We saw this issue arise in an employment dispute over commissions when a party attempted to introduce a document evidently obtained from a third party computer manufacturer. The document had no connection to the party objecting to its admissibility, and the party attempting to admit the evidence could not produce a witness establishing that the document was what it purported to be. Therefore, the attorney fell short of on authenticity and hearsay, but the objection actually made was that the document bore no relation to the parties or issues in the case. The Court sustained the objection.
Although there is a potentially endless list of possible objections to documentary evidence a party must prepare for, we will end this discussion with the very common objection of hearsay within hearsay. Even if you have a properly authenticated document that falls within a hearsay exception, that meets the now misnamed best evidence rule, and that is relevant and material, any hearsay contained within that document will not be admissible unless that hearsay itself falls within an enumerated exception. Most recently, we saw this arise in the context of medical records that contained a written note from a doctor that a nurse had told the doctor that a patient had made a statement to the nurse regarding drug use. The nurse was not identified in the record and was not brought into trial to testify that she heard the patient, who was the Plaintiff in the case, make such a statement. Therefore, the statement could not be proven as an admission by a party opponent, and the doctor’s entry as written in the record constituted inadmissible hearsay within hearsay.
KEITH JACKSON is a partner with Riley & Jackson, P.C. in Birmingham, Alabama.