Rule 902 - Self-AuthenticationBy 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. Alaska Comm. R. Evid. 902