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Admissibility of documents

Documents, physical or digital, are admissible if

  • they are properly authenticated (are what they claim to be), and
  • a proper foundation establishes that they are relevant and do not violate hearsay, privilege, or original document rules.

Click on the infographic on the right to see an overview:

The Q&A that follows spots issues for most types of documents, and identifies the applicable Federal Rules of Evidence.

Start the Q&A now.

 
 

startauthentication method

Authentication of the document is established by "evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a).

The document was authenticated:

 
 

startauthenticatedseal or certificate

Self-authenticating documents authenticated by a seal or certificate:

  • Domestic public documents that are sealed and signed. They can be signed or attested by an official without a seal, but an official with a seal must certify the authenticating official's capacity and signature. Fed. R. Evid 902(1), (2).
  • Foreign public documents that purport to be signed or attested by a person who is authorized by a foreign country's law to do so, with an additional certification by a U.S. official of the genuineness of that person's signature and official position. These formal requirements may be relaxed for good cause. Id. ¶ 902(3).
  • Certified copies of public records, certified as correct by the custodian or other authorized person, or by a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. Id. ¶ 902(4).
  • Acknowledged Documents, documents "accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments." Id. ¶ 902(8).

  • Documents were properly authenticated by one of these methods
  • Documents must be authenticated in some other way

 
 

startauthenticatedcertified business records

Records of regularly conducted activity (business records) are traditionally authenticated by testimony of the custodian establishing that they meet the requirements of Rule 803(6). However, they may also be authenticated with a certificate of the custodian reciting that those requirements have been met. Fed. R. 902(11). Pretrial written notice and opportunity to inspect are required. Id.

Foreign business records may be authenticated in the same fashion, with the additional requirement that the certification 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. Fed. R. 902(12). See also 18 U.S.C. § 3505(b) (notice).

The documents:

 
 

startauthenticatedcertified computer records

Modern business records are computer records that fall into two categories: records generated by the computer, Fed. R. 902(13), and data copied from computer storage. Fed. R. 902(14).

In each case the records may be authenticated by a certification by a qualified person establishing that the computer system produces an accurate result, or that the copied data is accurate. Pretrial written notice and opportunity to inspect are required.

The documents:

 
 

startauthenticatedpublications and commercial paper

Some types of documents are self authenticating under Rule 902 because of the manner in which they are published. They include:

  • Books, pamphlets, or other publications purporting to be issued by a public authority. Id. ¶ 902(5).
  • Newspapers and periodicals. Id. ¶ 902(6).
  • Trade inscriptions. Id. ¶ 902(7).
  • Commercial paper, "to the extent allowed by general commercial law." Id. ¶ 902(9).

The documents:

 
 

startauthenticated ... confrontation issue with the certificate?

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that defendants have a right under the Confrontation Clause of the Sixth Amendment to cross-examine the declarant when testimonial evidence is offered by the government in a criminal case. It may be that the underlying document is not testimonial (most business records, for example, are not), but that the authenticating certificate is testimonial.

Most case law views a routine declaration by a custodian of records as being nontestimonial, but the litigation risk increases where the certificate asserts the nonexistence of a record, or otherwise create a record for the sole purpose of providing evidence against a defendant. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322-23 (2009). In these cases prosecutors may decide to avoid the issue and request a stipulation or call a live witness.

 
 

start ... hearsay ... confrontation issue with the statement?

Defendants have a right under the Sixth Amendment's Confrontation Clause to cross-examine the declarant when testimonial evidence is offered by the government in a criminal case. Crawford v. Washington, 541 U.S. 36 (2004). Routine hearsay does not implicate Crawford because the statements are not prepared in anticipation of litigation (i.e., are not testimonial).

Crawford does not bar "the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (non-hearsay) Id. at 59 n.9. It would not bar testimonial statements if the declarant is available for cross-examination. See California v. Green, 399 U.S. 149, 158 (1970). It does not bar routine business and public records, because such statements are not prepared in anticipation of litigation.

It may bar lab analysts' affidavits offered at trial to identify drugs, or "a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it." See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009).

The document:

 
 

startauthenticatedwitness with knowledge

A live witness may testify that the document is "what it is claimed to be." Fed. R. Evid. 901(b)(1). The witness must have personal knowledge. Fed. R. Evid. 602.

This could be the person who created the document, a custodian of records, a court reporter, etc.

 
 

startauthenticateddistinctive characteristics

Rule 901(b) describes a number of ways that a document can be authenticated circumstantially, including a catchall paragraph (b)(4) ("appearance, contents, substance, internal patterns, or other distinctive characteristics ... taken together with all the circumstances"). Illustrative examples include:

  • documents produced during discovery on the letterhead of the opposing, producing party.
  • reference to facts known only to the author.
  • recipient's subsequent conduct reflects knowledge of the content.
  • the reply letter method, that permits the prima facie authentication of a communication if it appears to be a reply from the addressee placed in a reliable channel of communication.
  • the author's handwriting. Fed. R. Evid. 901(b)(2), (3).
  • documents or data compilations over 20 years old found in their normal place under circumstances that are not suspicious ("ancient documents"). Fed. R. Evid. 901(b)(8).
  • a process or system that produces an accurate result (e.g., a computer printout). Fed. R. Evid. 901(b)(9).

The document's authenticity:

 
 

startauthenticated ... relevant?

An authenticated document must be relevant. A document is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence; and ... the fact is of consequence in determining the action." Fed. R. Evid. 401.

Relevant evidence may nevertheless be inadmissible "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403 (emphasis added).

Note. Documents containing irrelevant matter may nevertheless be admitted if the irrelevant part can be dealt with by redaction or a curative instruction. So the proper focus here (and on other similar objections) is on the part of the document that you really need.
The part of the document that you want to admit is:
 
 

startauthenticated ... relevant ... hearsay?

Documents may contain statements that opponents characterize as hearsay.

There are three steps involved in addressing a hearsay objection. First, does the statement meet the definition of hearsay (statements offered to prove the truth of the matter asserted) set out in Rule 801(c)? Second, is it one of the enumerated types of statements declared to be Not Hearsay in Rule 801(d)? Finally, does the statement nevertheless fit a hearsay exception set out in Rule 804?

Examples of statements that do not fit the Rule 801(c) definition are:

  • verbal acts that have independent legal significance (statements granting agency, statements constituting the crime)
  • statements offered to show effect on the listener
  • a declarant's lies
  • raw computer data (a computer is not a person)
  • statements offered as explanatory "background" (not offered to prove the truth of the matter asserted)

The statement in the document that the proponent wishes to admit is:

 
 

startauthenticated ... relevant ... not hearsay?

Certain types of statements are excluded from the hearsay definition by Rule 801(d) ("Statements That Are Not Hearsay").

Examine whether the statement is excluded from the hearsay definition because it:

 
 

start ... not hearsaysworn prior consistent statement

If the declarant testifies and is subject to cross-examination, his or her prior testimony given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition is "Not Hearsay." Fed. R. Evid. 801(d), (d)(1)(A).

Consequently, a properly authenticated transcript meeting that description is admissible as substantive evidence.

 
 

start ... not hearsayprior consistent statement

If the declarant testifies and is subject to cross-examination, a statement consistent with the declarant’s testimony ("prior consistent statement") is "Not Hearsay" if it is offered to rebut an express or implied charge that the declarant:

  • recently fabricated it;
  • acted from a recent improper influence or motive in so testifying; or
  • it is offered to rehabilitate the declarant's credibility as a witness when attacked on another ground

Fed. R. Evid. 801(d), (d)(1)(B).

The rehabilitation clause was added in 2014. Essentially, statements that have always been admitted as "rehabilitation" are are now admitted as substantive evidence.

 
 

start ... not hearsayout-of-court identification

If the declarant testifies and is subject to cross-examination, a prior statement that "identifies a person as someone the declarant perceived earlier" is "Not Hearsay." Fed. R. Evid. 801(d), (d)(1)(C). This exclusion is more commonly applied to prior verbal statements, not documents.

 
 

start ... not hearsayopposing party statement

An opposing party's statement, offered against an opposing party, is "Not Hearsay" if it:

  • "was made by the party in an individual or representative capacity";
  • "is one the party manifested that it adopted or believed to be true";
  • "was made by a person whom the party authorized to make a statement on the subject"; or
  • "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed"

Fed. R. Evid. 801(d), (d)(2).

 
 

start ... not hearsaycoconspirator statement

A statement made by an opposing party's coconspirator, made during and in furtherance of the conspiracy, is "Not Hearsay" when offered against the opposing party. Fed. R. Evid. 801(d), (d)(2)(E).

This typically occurs in criminal cases. The essential elements (existence of a conspiracy, furtherance) are found by the trial judge, who is not constrained by formal rules of evidence. The judge may consider the proffered hearsay statements of the coconspirator to determine whether a conspiracy existed. Bourjaily v. United States, 483 U.S. 171 (1987).

 
 

start ... hearsayavailable declarantexceptions

Federal Evidence Rule 803 ("Exceptions to the Rule Against Hearsay") lists 23 exceptions to the hearsay rule that do not require an unavailable declarant.

The ones listed below are commonly asserted in document cases. Select one that applies to your document:

 
 

starthearsaydeclarant unavailable?

Federal Evidence Rule 804 ("Hearsay Exceptions; Declarant Unavailable") lists five exceptions to the hearsay rule that require an unavailable declarant.

Unavailablity is established where the declarant:

  • asserts a valid privilege
  • defies a court order to testify
  • does not remember the subject matter
  • cannot testify due to death or illness
  • cannot reasonably be compelled to appear (e.g., unable to searve subpoena)

Fed. R. Evid. 804(a).

The proponent must have clean hands. The declarant is not unavailable if the "proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying." Id. ¶ 804(b).

The declarant is:

 
 

start ... hearsayunavailable declarantexceptions

Rule 804 exceptions to the hearsay rule require an unavailable declarant. The statements that typically appear in documents include:

  • Prior sworn testimony offered against a party—or, in a civil case, a predecessor in interest— who had an opportunity and similar motive to examine the witness (prior testimony). Fed. R. Evid. 804(b)(1).
  • A statement against proprietory or pecuniary interest (statement against interest). Corroborating circumstances that clearly indicate its trustworthiness are required in criminal cases for statements that expose the declarant to criminal liability ("statements against penal interest"). Fed. R. Evid. 804(b)(3).

The statement:

 
 

start ... hearsayavailable declarantexceptionsstate of mind

Federal Evidence Rule 803(3) (emphasis added) describes a hearsay exception for a

statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
It does not matter whether the declarant is available to testify.

It would, for example, permit the admission of letters stating an intent to travel to prove the travel. Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285 (1892).

 
 

start ... hearsayavailable declarantexceptionsrecorded recollection

Federal Evidence Rule 803(5) admits records on

  • "a matter the witness once knew about but now cannot recall well enough to testify fully and accurately";
  • that "was made or adopted by the witness when the matter was fresh in the witness's memory"; and
  • "accurately reflects the witness's knowledge."

The proponent reads the record to the jury, but it only gets received into evidence as an exhibit if the opponent offers it.

It does not matter whether the declarant is available to testify.

 
 

start ... hearsayavailable declarantexceptionsbusiness record

Federal Evidence Rule 803(6) ("Records of a Regularly Conducted Activity") is the business records exception that admits records of an act, event, condition, opinion, or diagnosis if a custodian or qualified witness establishes that:

  • "the record was made at or near the time by—or from information transmitted by—someone with knowledge";
  • "the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit"; and
  • "making the record was a regular practice of that activity"

A live witness is not necessary; these elements may also be shown "by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification." Id. ¶ (6)(D). The record is inadmissible if the opponent shows "that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Id. ¶ (6)(E).

It does not matter whether the declarant is available to testify.

 
 

start ... hearsayavailable declarantexceptionspublic record

Federal Evidence Rule 803(8) ("Public Records") admits a record or statement of a public office if it sets out:

(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation
The record is inadmissible if the opponent shows "that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Id. ¶ (8)(B).

A related provision admits a "record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty." Federal Evidence Rule 803(9).

It does not matter whether the declarant is available to testify.

 
 

start ... hearsayavailableexceptionsabsence of a record

Hearsay exceptions for establishing the absence of records are provided in Federal Evidence Rules 803(7) (business records) and 803(10) (public records).

Rule 803(7) requires proof that the record was regularly kept for a matter of that kind. Rule 803(10) requires proof that a diligent search failed to disclose a public record or statement. It does not matter whether the declarant is available to testify.

Constitutional and statutory issues, examined elsewhere in this Q&A, come into play when the government seeks to use a certificate to establish absence of a record in a criminal trial.

 
 

start ... hearsayavailable declarantexceptionsancient document

The ancient documents exception admits a "statement in a document that was prepared before January 1, 1998, and whose authenticity is established." Fed. R. Evid. 803(16). The date was selected to avoid the flood of electronic data produced after that date.

 
 

start ... hearsay ... residual clause

Rule 807 sets out a residual exception for statements that do fit under Rule 803 or 804 where the statement:

  • "has equivalent circumstantial guarantees of trustworthiness";
  • "is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts"; and
  • "admitting it will best serve the purposes of these rules and the interests of justice"

Detailed pretrial notice to the other side is required. Id. ¶ 807(b).

The statement:

 
 

start ... relevant ... original or admissible copy?

Federal Evidence Rule 1002 requires production of the original to prove "content" unless other rules or statutes provide otherwise.

Nevertheless, duplicates are admissible unless there is a "genuine question" about authenticity, or admission of the duplicate is "unfair." Fed. R. Evid. 1003. Also, nonproduction of the original is excused where there is loss or destruction not in bad faith, it can't be compelled by judicial process, the opponent controls the original, or it is not "closely related" to "controlling issue." Fed. R. Evid. 1004.

Other exceptions apply to properly authenticated public records, Fed. R. Evid. 1005, the use of summaries, Fed. R. Evid. 1006, or the testimony, deposition, or written statement of the opponent. Fed. R. Evid. 1007.

Computer printouts and digital photos are "originals." Fed. R. Evid. 1001.

The document is an:

 
 

start ... relevant ... privileged?

Otherwise admissible documents may be objectionable if they contain privileged material. Federal courts recognize privileges grounded in federal common law, statutes, the Constitution, or rules prescribed by the Supreme Court. Federal Evidence Rule 501. In civil cases, "state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Id.

The document:

 
 

start ... relevantsummary chart

Summary charts may be admitted pursuant to Federal Rule 1006 where the underlying documents in the case are voluminous, and are themselves admissible and reasonably available for inspection and copying. The summary must be accurate and nonprejudicial. The witness who prepared the summary should introduce it and be subject to cross-examination.

Pedagogical charts are not specifically recognized by the Rules of Evidence, but find some authority in Fed. R. Evid. 611(a). They summarize admitted evidence, are typically used in argument, but do not go to the jury room without the consent of the parties.

The exhibit is:

 
 

start ... relevant ... redactable?

This part of the document is inadmissible, but other parts may be admitted if the inadmissible part is redacted, and/or the court gives the jury a curative instruction to disregard the inadmissible part.

 
 

The document is admissible.

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The document is inadmissible.

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