In Re: Order Approving the Amendment of Pennsylvania Rule of Evidence 902

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
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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
(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. 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.
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(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
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. 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) Certified Records Generated by an Electronic Process or System. A
record generated by an electronic process or system that produces
an accurate result, as shown by a certification of a qualified person
that complies with the certification requirements of Rule 902(11) or
(12). The proponent must also meet the notice requirements of Rule
902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or
File. Data copied from an electronic device, storage medium, or file,
if authenticated by a process of digital identification, as shown by a
certification of a qualified person that complies with the certification
requirements of Rule 902(11) or (12). The proponent also must meet
the notice requirements of Rule 902(11).
(15) 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.
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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).
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) is identical to F.R.E. 902(5). There is no corresponding statutory
provision 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
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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); 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).
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) is identical to F.R.E. 902(13). This rule establishes a
procedure by which parties can authenticate certain electronic evidence other
than through the testimony of a foundation witness. The rule specifically allows
the authenticity foundation that satisfies Rule 901(b)(9) to be established by a
certification rather than the testimony of a live witness. A proponent establishing
authenticity under this rule must present a certification containing information
that would be sufficient to establish authenticity were that information provided
by a witness at trial. If the certification provides information that would be
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insufficient to authenticate the record if the certifying person testified, then
authenticity is not established under this rule.
A certification under this rule can establish only that the proffered item has
satisfied the admissibility requirements for authenticity. The opponent remains
free to object to admissibility of the proffered item on other grounds - including
hearsay, relevance, or in criminal cases the right to confrontation. For example, a
certification authenticating a computer output, such as a spreadsheet or a
printout of a webpage, does not preclude an objection that the information
produced is unreliable - the authentication establishes only that the output came
from the computer.
The reference to the "certification requirements of Rule 902(11) or (12)" is
only to the procedural requirements for a valid certification. There is no intent to
require, or permit, a certification under this rule to prove the requirements of Rule
803(6). Rule 902(13) is solely limited to authentication of a record generated by
an electronic process or system and any attempt to satisfy a hearsay exception
must be made independently.
A challenge to the authenticity of electronic evidence may require technical
information about the system or process at issue, including possibly retaining a
forensic technical expert; such factors will affect whether the opponent has a fair
opportunity to challenge the evidence given the notice provided.
Nothing in Rule 902(13) is intended to limit a party from establishing
authenticity of electronic evidence on any ground provided in these Rules.
Pa.R.E. 902(14) is identical to F.R.E. 902(14). This rule establishes a
procedure by which parties can authenticate data copied from an electronic
device, storage medium, or an electronic file, using a certificate rather than
through the testimony of a foundation witness. A proponent establishing
authenticity under this rule must present a certification containing information
that would be sufficient to establish authenticity were that information provided
by a witness at trial. If the certification provides information that would be
insufficient to authenticate the record if the certifying person testified, then
authenticity is not established under this rule.
Today, data copied from electronic devices, storage media, and electronic
files are ordinarily authenticated by "hash value." A hash value is a number that
is often represented as a sequence of characters and is produced by an algorithm
based upon the digital contents of a drive, medium, or file. If the hash values for
the original and copy are different, then the copy is not identical to the original. If
the hash values for the original and copy are the same, it is highly improbable
that the original and copy are not identical. Thus, identical hash values for the
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original and copy reliably attest to the fact that they are exact duplicates. This
Rule allows self-authentication by a certification of a qualified person that she
checked the hash value of the proffered item and that it was identical to the
original. The Rule is flexible enough to allow certifications through processes
other than comparison of hash value, including by other reliable means of
identification provided by future technology.
A certification under this rule can only establish that the proffered item is
authentic. The opponent remains free to object to admissibility of the proffered
item on other grounds - including hearsay, relevance, or in criminal cases the
right to confrontation. For example, in a criminal case in which data copied from
a hard drive is proffered, the defendant can still challenge hearsay found in the
hard drive, and can still challenge whether the information on the hard drive was
placed there by the defendant.
The reference to the “certification requirements of Rule 902(11) or (12)” is
only to the procedural requirements for a valid certification. There is no intent to
require, or permit, a certification under this rule to prove the requirements of Rule
803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy
a hearsay exception must be made independently.
A challenge to the authenticity of electronic evidence may require technical
information about the system or process at issue, including possibly retaining a
forensic technical expert; such factors will affect whether the opponent has a fair
opportunity to challenge the evidence given the notice provided.
Nothing in Rule 902(14) is intended to limit a party from establishing
authenticity of electronic evidence on any ground provided in these Rules.
Pa.R.E. 902[(13)] (15) 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 October 22, 2019, effective January 1, 2020; amended
November 4, 2019, effective January 2, 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).
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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 October 22, 2019 amendment of paragraphs (4), (6), and (12) published
with the Court’s Order at 49 Pa.B. ___ (__________, 2019). Final Report explaining
the November 4, 2019 adoption of paragraphs (13) and (14) published with the
Court’s Order at 49 Pa.B. ___ (__________, 2019).
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