Alaska R. Evid. 902 commentary

By providing for self-authentication of certain documents

and other items of real evidence this Rule dispenses with the

need to produce extrinsic evidence of authenticity as a

condition precedent to admissibility. The move to decrease the

foundation requirements for some real evidence is a move

towards a more efficient trial system. All of the subdivisions of

this Rule govern types of evidence which can be presumed to

be authentic and free from taint without much danger that the

rate of error in litigation will be appreciably affected. By

eliminating the costs of laying a foundation, the expense of

litigation to the parties and to the taxpayers should be reduced

to some significant extent.

While a presumption of authenticity dispenses with the need

to introduce extrinsic evidence as a condition precedent to

admissibility, it does not preclude a dispute about authenticity

by the parties, who are free to attack the genuineness of the

real evidence. When evidence is introduced to dispute the

authenticity of an official seal or signature, the jury will

determine its validity unless the trial judge finds that

reasonable minds could not differ on the question, in which

case a directed verdict or peremptory instruction should result

in a civil case. In a criminal case the same is true, except that

the trial judge cannot direct a verdict against, or instruct the

jury that it must make a finding against, the defendant. See

Reporter’s Comment to Rule 201. See also Reporter’s

Comment to Rule 303.

The Advisory Committee’s Note to the Federal Rule, which

is similar with respect to most of the provisions except

subdivision (3) (a), is heavily relied upon in this Comment.

(1) Domestic Public Documents Under Seal. The

acceptance of documents bearing a public seal and signature,

most often encountered in practice in the form of

acknowledgements or certificates authenticating copies of

public records, is actually of broad application. 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, due to the easy

ascertainment of the validity of the seal. See 7 Wigmore

§ 2161; California Evidence Code § 1452.

(2) Domestic Public Documents Not Under Seal. While

statutes are found which raise a presumption of genuineness of

purported official signatures in the absence of an official seal,

7 Wigmore § 2167; California Evidence Code § 1453, the

greater ease of effecting a forgery under these circumstances is

apparent. Hence this paragraph of the rule calls for authentication by an officer who has a seal. See also N.Y. Civ. Prac.

Law, Rule 45421 (McKinney).

(3) Foreign Public Documents. Paragraph (a) provides

that documents bearing the seal of state of a foreign nation are

presumptively valid. Although the Federal Rule does not so

provide, this is in accord with California Evidence Code

§ 1452 and with some common law authority. See 7 Wigmore

§ 2163, at 645. Unlike the California provision, the seal of a

public entity of a foreign nation is not presumed to be

self-authenticating under this rule. The concern for forgery is

greater where the seal is more difficult to ascertain as in the

case of departments, agencies and officers of foreign nations.

See Reporter’s Comment to Alaska Evidence Rule 202(c) (4)

for related treatment of judicial notice of foreign law and a

discussion of the problem associated with ascertaining foreign

law. Paragraph (b) provides a method for extending the

presumption of authenticity to foreign official documents

which are not under the seal of state by a procedure of

certification. It is largely based on Fed. R. Civ. P. 44(a) (2) but

applies to public documents in addition to public records. It is

important to note that an American officer can supply the

necessary verification, whether or not he or she is located in

the foreign country whose record or document is introduced.

Also important is the fact that the Rule provides several

different ways of authenticating foreign public documents.

This section also provides that where reasonable opportunity

exists for the parties to investigate authenticity, the court may

order that foreign public documents be presumed to be

authenticated without final certification. This is similar to Rule

1003 in its impact. It is important that the adjective

“reasonable” be deemed to include financial and logistical concerns, as well as concern about time.

(4) Certified Copies of Public Records. The common

law has provided that official records and reports recorded or

filed in a public office may be authenticated by a certificate of

a custodian or other person authorized to make the

certification. Under this provision the certificate must comply

with sections (1)–(3) previously discussed. It will be observed

that the certification procedure here provided extends only to

public records, reports, and recorded documents, all including

data compilations, and does not apply to public documents

generally. Hence documents provable when presented in

original form under subdivisions (1), (2), or (3) may not be

provable by certified copy under subdivision (4).

(5) Official Publication. The chance to dispense with

preliminary proof of the genuineness of purportedly official

publications, most commonly encountered in connection with

statutes, court reports, rules, and regulations, has been greatly

enlarged by statutes and decisions. 5 Wigmore § 1684.

Subdivision (5), it will be noted, 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. Where other considerations bar a

given official publication from admissibility—if, for example,

a hearsay problem exists—this section will not help the offering party escape the relevant exclusionary rule.

(6) Newspapers and Periodicals. The likelihood of

forgery of newspapers or periodicals is slight. Hence no danger

is apparent in receiving them. Establishing the authenticity of

the publication may, of course, still leave open questions of

authority and responsibility for items therein contained. See 7

Wigmore § 2150. Again, although production of materials purporting to be a newspaper or periodical amounts to

self-authentication, admissibility depends upon other factors as

well.

(7) Trade Inscriptions and the Like. As in the case of

domestic seals and foreign seals of state, the serious penalties

associated with forgery and trademark infringement justify less

concern with fraud in allowing trade inscriptions and the like

to be self-authenticating.

(8) Acknowledged Documents. In virtually every state,

acknowledged title documents are receivable in evidence

without further proof. See 5 Wigmore § 1676. 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. See California

Evidence

Code

§ 1451.

This is an expansion of self-authentication, but one that is logically impelled from

existing law.

(9) Commercial Paper and Related Documents.

Commercial paper, signatures thereon, and documents relating

thereto are authenticated to the extent provided by general

commercial law. Where federal commercial paper is involved,

federal commercial law will apply. Clearfield Trust Co. v.

United States, 318 U.S. 363, 87 L.Ed. 838 (1943). See C.

Wright, Handbook of the Law of Federal Courts § 45, at 174

(2d ed. 1970).

(10) Presumptions

Created by

Law.

This section

recognizes that whenever the legislature or the Supreme Court

of Alaska pursuant to its rulemaking authority determines to

make any signature, document, or other matter presumptively

genuine, self-authentication can be accomplished in the

manner provided by such statute or rule. Should the United

States Congress confer presumptive validity on some item of

proof with the intent of covering both state and federal courts,

or should the federal courts interpret a statute that is enforced

in both state and federal courts so as to require that an item of

proof be deemed presumptively admissible, the Supremacy

Clause would require the several states to be bound by such

legislation, as long as the scope of the federal law does not

exceed the reach of federal power.