In Re: Order Approving the Amendment of Pa Rules of Evidence 901(a), 902(4), 902(6) & 902(12) ( 2019 )

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or Identifying Evidence
(a) In General. Unless stipulated, [T]to satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only – not a complete list – of evidence
that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is
what it is claimed to be.
(2) Nonexpert Opinion about Handwriting. A nonexpert’s opinion that
handwriting is genuine, based on a familiarity with it that was not acquired
for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison
with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents,
substance, internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice –
whether heard firsthand or through mechanical or electronic transmission
or recording – based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone
conversation, evidence that a call was made to the number assigned at
the time to:
(A) a particular person, if circumstances, including self-identification,
show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the
call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by
law; or
(B) a purported public record or statement is from the office where
items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a
document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 30 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process
or system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or a Rule. Any method of authentication
or identification allowed by a statute or a rule prescribed by the Supreme
Court.
Comment
Pa.R.E. 901(a) is substantively identical to F.R.E. 901(a) and consistent with
Pennsylvania law. The authentication or identification requirement may be expressed
as follows: When a party offers evidence contending either expressly or impliedly that
the evidence is connected with a person, place, thing, or event, the party must provide
evidence sufficient to support a finding of the contended connection. See
Commonwealth v. Hudson, [489 Pa. 620,] 414 A.2d 1381 (Pa. 1980); Commonwealth v.
Pollock, [414 Pa. Super. 66,] 606 A.2d 500 (Pa. Super. 1992). The proponent may
be relieved of this burden when all parties have stipulated the authenticity or
identification of the evidence. See, e.g., Pa.R.C.P. No. 212.3(a)(3) (Pre-Trial
Conference); Pa.R.C.P. No. 4014 (Request for Admission); Pa.R.Crim.P. 570(A)(2)
& (3) (Pre-Trial Conference).
In some cases, real evidence may not be relevant unless its condition at the time
of trial is similar to its condition at the time of the incident in question. In such cases,
the party offering the evidence must also introduce evidence sufficient to support a
finding that the condition is similar. Pennsylvania law treats this requirement as an
aspect of authentication. See Commonwealth v. Hudson, [489 Pa. 620,] 414 A.2d 1381(Pa. 1980).
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Demonstrative evidence such as photographs, motion pictures, diagrams and
models must be authenticated by evidence sufficient to support a finding that the
demonstrative evidence fairly and accurately represents that which it purports to depict.
See Nyce v. Muffley, [384 Pa. 107,] 119 A.2d 530 (Pa. 1956).
Pa.R.E. 901(b) is identical to F.R.E. 901(b).
Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with
Pennsylvania law in that the testimony of a witness with personal knowledge may be
sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, [489
Pa. 620,] 414 A.2d 1381 (Pa. 1980).
Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S.
§ 6111, which also deals with the admissibility of handwriting.
Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with
Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier
of fact will have to resolve the issue. This may be done by comparing the exhibit to
authenticated specimens. See Commonwealth v. Gipe, [169 Pa. Super. 623,] 84 A.2d
366 (Pa. Super. 1951) (comparison of typewritten document with authenticated
specimen). Under this rule, the court must decide whether the specimen used for
comparison to the exhibit is authentic. If the court determines that there is sufficient
evidence to support a finding that the specimen is authentic, the trier of fact is then
permitted to compare the exhibit to the authenticated specimen. Under Pennsylvania
law, lay or expert testimony is admissible to assist the jury in resolving the question.
See, e.g., 42 Pa.C.S. § 6111.
Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has
permitted evidence to be authenticated by circumstantial evidence similar to that
discussed in this illustration. The evidence may take a variety of forms including:
evidence establishing chain of custody, see Commonwealth v. Melendez, [326 Pa.
Super. 531,] 474 A.2d 617 (Pa. Super. 1984); evidence that a letter is in reply to an
earlier communication, see Roe v. Dwelling House Ins. Co. of Boston, [149 Pa. 94,] 23
A. 718 (Pa. 1892); testimony that an item of evidence was found in a place connected to
a party, see Commonwealth v. Bassi, [284 Pa. 81,] 130 A. 311 (Pa. 1925); a phone call
authenticated by evidence of party's conduct after the call, see Commonwealth v. Gold,
[123 Pa. Super. 128,] 186 A. 208 (Pa. Super. 1936); and the identity of a speaker
established by the content and circumstances of a conversation, see Bonavitacola v.
Cluver, [422 Pa. Super. 556,] 619 A.2d 1363 (Pa. Super. 1993).
Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has
permitted the identification of a voice to be made by a person familiar with the alleged
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speaker's voice. See Commonwealth v. Carpenter, [472 Pa. 510,] 372 A.2d 806 (Pa.
1977).
Pa.R.E. 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be
consistent with Pennsylvania law. See Smithers v. Light, [305 Pa. 141,] 157 A. 489(Pa. 1931); Wahl v. State Workmen's Ins. Fund, [139 Pa. Super. 53,] 11 A.2d 496 (Pa.
Super. 1940).
Pa.R.E. 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that
public records and reports may be authenticated in the same manner as other writings.
In addition, public records and reports may be self-authenticating as provided in Pa.R.E.
902. Public records and reports may also be authenticated as otherwise provided by
statute. See Pa.R.E. 901(b)(10) and its Comment.
Pa.R.E. 901(b)(8) differs from F.R.E. 901(b)(8), in that the Pennsylvania Rule
requires thirty years, while the Federal Rule requires twenty years. This change makes
the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball,
[277 Pa. 301,] 121 A. 191 (Pa. 1923).
Pa.R.E. 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in
Pennsylvania discussing authentication of evidence as provided in this illustration. The
paragraph is consistent with the authority that exists. For example, in Commonwealth v.
Visconto, [301 Pa. Super. 543,] 448 A.2d 41 (Pa. Super. 1982), a computer print-out
was held to be admissible. In Appeal of Chartiers Valley School District, [67 Pa.
Cmwlth. 121,] 447 A.2d 317 (Pa. Cmwlth. 1982), computer studies were not admitted
as business records, in part, because it was not established that the mode of preparing
the evidence was reliable. The court used a similar approach in Commonwealth v.
Westwood, [324 Pa. 289,] 188 A. 304 (Pa. 1936) (test for gun powder residue) and in
other cases to admit various kinds of scientific evidence. See Commonwealth v.
Middleton, [379 Pa. Super. 502,] 550 A.2d 561 (Pa. Super. 1988) (electrophoretic
analysis of dried blood); Commonwealth v. Rodgers, [413 Pa. Super. 498,] 605 A.2d
1228 (Pa. Super. 1992) (results of DNA/RFLP testing).
Pa.R.E. 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to
Federal law and to make the paragraph conform to Pennsylvania law.
There are a number of statutes that provide for authentication or identification of
various types of evidence. See, e.g., 42 Pa.C.S. § 6103 (official records within the
Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and
foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed
in a public office); 42 Pa.C.S. § 6110 (certain registers of marriages, births and burials
records); 75 Pa.C.S. § 1547(c) (chemical tests for alcohol and controlled substances);
75 Pa.C.S. § 3368 (speed timing devices); 75 Pa.C.S. § 1106(c) (certificates of title); 42
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Pa.C.S. § 6151 (certified copies of medical records); 23 Pa.C.S. § 5104 (blood tests to
determine paternity); 23 Pa.C.S. § 4343 (genetic tests to determine paternity).
Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January
17, 2013, effective March 18, 2013; amended November 4, 2019, effective January
1, 2020.
Committee Explanatory Reports:
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013). Final Report
explaining the November 4, 2019 amendment of paragraph (1) published with the
Court’s Order at 49 Pa.B. ___ (__________, 2019).
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Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A
document that bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States;
the former Panama Canal Zone; the Trust Territory of the Pacific
Islands; a political subdivision of any of these entities; or a
department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed But Are Signed and
Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named
in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that
same entity certifies under seal – or its equivalent – that the signer
has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or
attested by a person who is authorized by a foreign country’s law to do so.
The document must be accompanied by a final certification that certifies
the genuineness of the signature and official position of the signer or
attester – or of any foreign official whose certificate of genuineness relates
to the signature or attestation or is in a chain of certificates of genuineness
relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general,
vice consul, or consular agent of the United States; or by a diplomatic or
consular official of the foreign country assigned or accredited to the United
States. If all parties have been given a reasonable opportunity to
investigate the document’s authenticity and accuracy, the court may for
good cause, either:
(A) order that it be treated as presumptively authentic without final
certification; or
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(B) allow it 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 a
copy of a document that was recorded or filed in a public office as
authorized by law– if the copy is certified as correct by:
(A) the custodian or another person authorized to make the
certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a statute, or
a rule prescribed by the Supreme Court.
A certificate required by paragraph (4)(B) may include a handwritten
signature, a copy of a handwritten signature, a computer generated
signature, or a signature created, transmitted, received, or stored by
electronic means, by the signer or by someone with the signer’s
authorization. A seal may, but need not, be raised.
(5) Official Publications. A book, pamphlet, or other publication purporting
to be issued by a public authority.
(6) Newspapers and Periodicals. [Printed m]Material purporting to be a
newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label
purporting to have been affixed in the course of business and indicating
origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate
of acknowledgment that is lawfully executed by a notary public or another
officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a
signature on it, and related documents, to the extent allowed by general
commercial law.
(10) Presumptions Authorized by Statute. A signature, document, or
anything else that a statute declares to be presumptively or prima facie
genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The
original or a copy of a domestic record that meets the requirements of
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Rule 803(6)(A)-(C), as shown by a certification of the custodian or
another qualified person that complies with Pa.R.C.P. No. 76. Before the
trial or hearing, the proponent must give an adverse party reasonable
written notice of the intent to offer the record – and must make the record
and certification available for inspection – so that the party has a fair
opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. [In a
civil case, the] The original or a copy of a foreign record that meets the
requirements of Rule 902(11), modified as follows: the certification rather
than complying with a statute or Supreme Court rule, must 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. The proponent must also
meet the notice requirements of Rule 902(11).
(13) Certificate of Non-Existence of a Public Record. A certificate that a
document was not recorded or filed in a public office as authorized by law
if certified by the custodian or another person authorized to make the
certificate.
Comment
This rule permits some evidence to be authenticated without extrinsic evidence of
authentication or identification. In other words, the requirement that a proponent must
present authentication or identification evidence as a condition precedent to
admissibility, as provided by Pa.R.E. 901(a), is inapplicable to the evidence discussed
in Pa.R.E. 902. The rationale for the rule is that, for the types of evidence covered by
Pa.R.E. 902, the risk of forgery or deception is so small, and the likelihood of discovery
of forgery or deception is so great, that the cost of presenting extrinsic evidence and the
waste of court time is not justified. Of course, this rule does not preclude the opposing
party from contesting the authenticity of the evidence. In that situation, authenticity is to
be resolved by the finder of fact.
Pa.R.E. 902(1), (2), (3), and (4) deal with self-authentication of various kinds of
public documents and records. They are identical to F.R.E. 902(1), (2), (3), and (4),
except that Pa.R.E. 901(4) eliminates the reference to Federal law and does not
require the certificate to include a pen-and-ink signature or raised seal for the
self-authentication of public documents. These paragraphs are consistent with
Pennsylvania statutory law. See, e.g. 42 Pa.C.S. § 6103 (official records within the
Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and
foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed
in a public office).
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The admission of a self-authenticating record of a prior conviction also requires
sufficient evidence, either direct or circumstantial, to prove that the subject of the record
is the same person for whom the record is offered in a proceeding. See, e.g.,
Commonwealth v. Boyd, 344 A.2d 864 (Pa. 1975).
Pa.R.E. 902(4) differs from F.R.E. 902(4) insofar as the rule does not require
the certificate to include a pen-and-ink signature or raised seal for the self-
authentication of public documents.
Pa.R.E. 902(5)[, (6) and (7) are] is identical to F.R.E. 902(5)[, (6), and (7)].
There [are] is no corresponding statutory provision[s] in Pennsylvania; however, 45
Pa.C.S. § 506 (judicial notice of the contents of the Pennsylvania Code and the
Pennsylvania Bulletin) is similar to Pa.R.E. 902(5).
Pa.R.E. 902(6) differs from F.R.E. 902(6) insofar as it does not contain
“printed” in reference to newspapers or periodicals. Cf. F.R.E. 101(b)(6) (“[A]
reference to any kind of written material or any other medium includes
electronically stored information.”). A newspaper or periodical should be
available to the public online, digitally, or in print, principally devoted to the
dissemination of local or general news and other editorial content, adherent to
journalistic ethics and standards, and updating its content on a regular basis.
For online newspapers and periodicals, links to other web content may be
included, but the core content must reside on a server or website.
Pa.R.E. 902(6) permits both printed and digital newspapers and
periodicals to be self-authenticated. Evidence purported to be an article or
item from a newspaper or periodical must contain sufficient indicia of its
original publication, including, but not limited to, the publication’s title; the
date of publication; page or volume of the article or item, if the content
appeared in print; and web address, if applicable, where the article or item
was originally published.
Pa.R.E. 902(7) is identical to F.R.E. 902(7).
Pa.R.E. 902(8) is identical to F.R.E. 902(8). It is consistent with Pennsylvania
law. See Sheaffer v. Baeringer, 29 A.2d 697 (Pa. 1943); Williamson v. Barrett, 24 A.2d
546 (Pa. Super. 1942); [21 P.S. §§ 291.1-291.13 (Uniform Acknowledgement Act);]
57 Pa.C.S. §§ 301-331 (Revised Uniform Law on Notarial Acts). An acknowledged
document is a type of official record and the treatment of acknowledged documents is
consistent with Pa.R.E. 902(1), (2), (3), and (4).
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Pa.R.E. 902(9) is identical to F.R.E. 902(9). Pennsylvania law treats various
kinds of commercial paper and documents as self-authenticating. See, e.g., 13 Pa.C.S.
§ 3505 (evidence of dishonor of negotiable instruments).
Pa.R.E. 902(10) differs from F.R.E. 902(10) to eliminate the reference to Federal
law and to make the paragraph conform to Pennsylvania law. In some Pennsylvania
statutes, the self-authenticating nature of a document is expressed by language
creating a “presumption” of authenticity. See, e.g., 13 Pa.C.S. § 3505.
Pa.R.E. 902(11) and (12) permit the authentication of domestic and foreign
records of regularly conducted activity by verification or certification. Pa.R.E. 902(11) is
similar to F.R.E. 902(11). The language of Pa.R.E. 902(11) differs from F.R.E. 902(11)
in that it refers to Pa.R.C.P. No. 76 rather than to Federal law. Pa.R.E. 902(12) differs
from F.R.E. 902(12) in that it requires compliance with a Pennsylvania statute rather
than a Federal statute.
Pa.R.E. 902(13) has no counterpart in the Federal Rules. This rule provides for
the self-authentication of a certificate of the non-existence of a public record, as
provided in Pa.R.E. 803(10)(A).
Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001,
effective January 1, 2002; amended February 23, 2004, effective May 1, 2004;
rescinded and replaced January 17, 2013, effective March 18, 2013; amended
November 7, 2016, effective January 1, 2017; amended June 12, 2017, effective
November 1, 2017; amended November 4, 2019, effective January 1, 2020.
Committee Explanatory Reports:
Final Report explaining the November 2, 2001 amendments adding paragraphs
(11) and (12) published with Court’s Order at 31 Pa.B. 6384 (November 24, 2001).
Final Report explaining the February 23, 2004 amendment of paragraph (12) published
with Court’s Order at 34 Pa.B. 1429 (March 13, 2004). Final Report explaining the
January 17, 2013 rescission and replacement published with the Court’s Order at 43
Pa.B. 651 (February 2, 2013). Final Report explaining the November 7, 2016 addition
of paragraph (13) published with the Court’s Order at 46 Pa.B. 7436 (November 26,
2016). Final Report explaining the June 12, 2017 amendment of the Comment
published with the Court’s Order at 47 Pa.B. 3491 (June 24, 2017). Final Report
explaining the November 4, 2019 amendment of paragraphs (4), (6), and (12)
published with the Court’s Order at 49 Pa.B. ___ (__________, 2019).
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