Alabama Rules of Evidence

Rule 901. Requirement of authentication or identification.

(a)   General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b)   Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1)   TESTIMONY OF WITNESS WITH KNOWLEDGE. Testimony that a matter is what it is claimed to be.

(2)   NONEXPERT OPINION ON HANDWRITING. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3)   COMPARISON BY TRIER OR EXPERT WITNESS. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4)   DISTINCTIVE CHARACTERISTICS AND THE LIKE. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5)   VOICE IDENTIFICATION. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6)   TELEPHONE CONVERSATIONS. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7)   PUBLIC RECORDS OR REPORTS. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8)   ANCIENT DOCUMENTS OR DATA COMPILATION. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence thirty years or more at the time it is offered.

(9)   PROCESS OR SYSTEM. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10)   METHODS PROVIDED BY STATUTE OR RULE. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court of Alabama.

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Section (a). General provision. Like the preexisting common law, Rule 901 embraces the historic requirement that the proponent of real or demonstrative evidence (all nontestimonial evidence, such as writings, objects, etc.) lay a threshold foundation, as a prerequisite to admissibility, sufficient to show that the evidence is what it is represented to be. This requirement manifests itself in the prerequisite foundation, often called a “chain of custody” requirement, which guarantees the identification of chattels. See Washington v. State, 269 Ala. 146, 112 So.2d 179 (1959); Ex parte Williams, 505 So.2d 1254 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 319.01 (4th ed. 1991). When a writing is offered as evidence, Rule 901 continues the necessity for laying a foundation to authenticate the document as genuine. See Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500 (1973); Timmons v. State, 487 So.2d 975 (Ala.Crim.App.1986). See also C. Gamble, McElroy’s Alabama Evidence § 320.01 (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 9-1 (1987).

The identification and authentication requirements in this rule are an integral part of logical relevancy. See J. Michael & M. Adler, Real Proof, 5 Vand.L.Rev. 344, 362 (1952). Even if an item of demonstrative evidence is otherwise probative of a material issue in the case, for example, the item is admissible only if it is what the offering party claims it to be. The question of authenticity or proper identification is, in the first instance, for the trial judge as a preliminary matter. See Ala.R.Evid. 104(a). The required foundational showing must consist of evidence “sufficient to support a finding that the matter in question is what its proponent claims.” The evidence of authentication or identification, as under prior Alabama practice, does not have to be conclusive or overwhelming; rather, it must be strong enough for the question to go to the jury. Any weaknesses in the foundational showing, insufficient to call for exclusion, go to the weight that the trier of fact is to give the evidence. See Tidwell v. State, 496 So.2d 109 (Ala.Crim.App.1986). Even if the offering party satisfies the requirement of this rule and the evidence is admitted, the ultimate question of authenticity or identification remains an issue for the jury.

It should be emphasized that compliance with the authentication or identification requirement does not necessarily render the item of evidence admissible. It must yet satisfy other evidentiary rules, such as those dealing with the best evidence requirements, hearsay, and relevancy. See, e.g., Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983).

Section (a) is identical to its federal counterpart.

Section (b). Illustrations. Section (a) states the general principle governing authentication and identification. Section (b) lists illustrative applications of this general rule. This list is not intended to be exclusive; rather, it is meant to guide in application of the general rule and is intended to leave “room for growth and development in this area of the law.” Fed.R.Evid. 901(b) advisory committee note.

The illustrative examples deal primarily, although not exclusively, with documents, voice communications, and data compilations. No specialized rules are stated for chattels; thus, their identification is to be governed by the general rule established in section (a), which largely reflects the preexisting common law.

Section (b), including its list of examples, is identical to the corresponding federal rule, except as to subsections (8) and (10).

Subsection (b)(1). Testimony of witness with knowledge. This method of authentication or identification is used with great frequency. A writing may be authenticated hereunder, for example, by testimony of a witness who saw the purported author write the document. Chattels, such as weapons or drugs, would be authenticated by testimony of successive handling sufficient to establish a chain of custody, as required under pre-rules Alabama law. See Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389 (1949) (clothing); McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912) (pistol); Crawford v. State, 112 Ala. 1, 21 So. 214 (1896) (pistol ball).

Subsection (b)(2). Nonexpert opinion on handwriting. As under traditional Alabama practice, lay witnesses may offer opinions as to whether an offered writing is in the handwriting of the purported author. Such lay opinions may be based upon a familiarity gained by seeing the person write, by exchanging correspondence, or by other means. See, e.g., Alabama Farm Bureau Mut. Casualty Ins. Co. v. Wood, 227 Ala. 624, 173 So.2d 787 (1965) (witness testifies that he has seen the purported author write and would recognize that person’s handwriting); Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784 (1937) (authenticating witness had corresponded with the purported author). See generally C. Gamble, McElroy’s Alabama Evidence § 111.01(1) (4th ed. 1991). Such an opinion is not admissible if the familiarity upon which it is based is acquired for purposes of the litigation. Compare Ala.R.Evid. 901(b)(3) (permitting an opinion as to the genuineness of handwriting based upon familiarity gained to prepare the witness for litigation, if the witness is an expert).

Subsection (b)(3). Comparison by trier or expert witness. An expert may be called to the stand and, after making a comparison of the questioned document with a properly authenticated one, give an opinion as to whether the document in question is in the handwriting of the purported author. Likewise, a genuine specimen and the disputed specimen may be admitted, without benefit of an expert witness, for the trier of fact to make its own comparison for the purpose of deciding the question of authenticity. This comparison method of authentication, of course, is not limited to writings but may be applied to other forms of proof.

Such authentication by visual comparison, whether by expert witness or by the trier of fact, is consistent with traditional Alabama law as expressed in both statutes and rules of court. See Ala. Code 1975, §§ 12-21-39 and 12-21-40; Ala.R.Civ.P. 44(j). See also C. Gamble, McElroy’s Alabama Evidence § 111.01(2) (4th ed. 1991). Nothing in this rule abrogates the preexisting principle that a lay witness, shown to be familiar with the subject person’s handwriting as required by Rule 901(b)(2), may likewise make such a comparison. See Ala.R.Civ.P. 44(j); Ala. Code 1975, § 12-21-39.

Subsection (b)(4). Distinctive characteristics and the like. A document, chattel, conversation, or other evidence may possess characteristics so distinctive that, when considered in light of the circumstances, they may support a finding that the item in question is what its proponent claims it is. A document or a telephone conversation, for example, may be authenticated as emanating from a particular person by its disclosing facts within the peculiar knowledge of the communicating person. Similarly, the content and circumstances of a letter may be sufficient to authenticate it as a reply to another authenticated letter. See Fed.R.Evid. 901(b)(4) advisory committee’s note. This method of authentication or identification is consistent with historic Alabama law. See, e.g., Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500 (1973); Washington v. State, 539 So.2d 1089 (Ala.Crim.App.1988). Compare C. Gamble, McElroy’s Alabama Evidence § 322.01 (4th ed. 1991) (doctrine governing reply letter or reply telegram).

Subsection (b)(5). Voice identification. Like preexisting Alabama common law, Rule 901(b)(5) recognizes voice identification by opinion of a witness who has heard the voice at any time under circumstances connecting it with the alleged speaker. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725 (1960), cert. denied, 366 U.S. 933 (1961). See C. Gamble, McElroy’s Alabama Evidence § 123.02 (4th ed. 1991). The identifying witness’s opinion is admissible, whether the voice in question was heard firsthand or through mechanical or electronic transmission or recording. See O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App.1986), rev’d, 515 So.2d 1250 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 329.01 (4th ed. 1991) (authentication of identity of person talking on telephone); J. Colquitt, Alabama Law of Evidence § 9.1(d) (1990).

Subsection (b)(6). Telephone conversations. A person’s self-identification during a telephone conversation, standing alone, is generally not sufficient proof that a voice heard by telephone was that of the person whose voice it is alleged to be. Such self-identification may be sufficient, however, if the number called, at which the self-identification is made, is that assigned by the telephone company, at the time of the call, to the person purportedly giving the self-identification. Similarly, if one makes a call to a number listed for a particular business, then the ensuing conversation, if it concerns business reasonably transacted over the telephone, is properly identified as having been conducted with that business.

These rules of identification relating to calls made to telephone numbers assigned to particular individuals and businesses have been embraced by some Alabama courts. See Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975); Loftin’s Rent-All, Inc. v. Universal Petroleum Servs., Inc., 344 So.2d 781 (Ala.Civ.App.1977). See also L. Scalise, Recent Decision, Identification of Anonymous Callers Through Circumstantial Evidence: May I Ask Who’s Calling, Please?, 36 Ala.L.Rev. 335 (1984). But see Yancey v. Ruffin, 281 Ala. 633, 206 So.2d 878 (1968).

Subsection (b)(7). Public records or reports. This rule provides for the authentication of a public record or report by evidence showing that the document is from the public office where such items are customarily kept. Two types of public records are included. The first type includes those authorized by law to be recorded or filed in a public office and which in fact are so recorded or filed. The second, more expansive, group includes any purported public record, report, statement, or data compilation, in whatever form, that is kept in a public office where items of the same nature are kept.

There are occasions when this rule will be activated by a proffer of the public record itself. In such a case, a foundation must be established to show that it comes from the public office where such records are customarily kept. As is more often the case, however, a copy of the public record is offered. If the copy is certified, then it may be self-authenticating by use of court rule, various authorizing statutes, or Ala.R.Evid. 902(1) through (4) (dealing with certified copy or copies under seal). Should an uncertified copy be offered, then the authenticating foundation set out in Rule 901 must be established. Courts applying Rule 901 admit uncertified records only if they are accompanied by testimony of the custodian, or some other witness qualified to testify, that the record does come from the public office where such documents are customarily kept. See, e.g., State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983); Pollution Control Coordinating Bd. v. Kerr-McGee Corp., 619 P.2d 858 (Okla. 1980).

Satisfaction of subsection (b)(7) does not necessarily guarantee carte blanche admissibility. The document may yet be subject to objections based upon the best evidence rule, the hearsay rule, irrelevancy, etc. See, e.g., Ala.R.Evid. 1005 (public record exception to best evidence rule); Ala.R.Evid. 803(8) (public records exception to hearsay rule); Ala.R.Evid. 401 (materiality and relevancy requirements).

Subsection (b)(8). Ancient documents or data compilation. This subsection embraces the historic ancient documents exception to the authentication requirement. A document of the prerequisite age, if satisfying the other requirements concerning its condition and location, is self-authenticating. See Stewart v. Peabody, 280 Ala. 5, 189 So.2d 554 (1966). See also C. Gamble, McElroy’s Alabama Evidence § 321.01(1) (4th ed. 1991). Like the common law, subsection (b)(8) sets the required document age at thirty years. Compare State v. Broos, 257 Ala. 690, 60 So.2d 843 (1952). In that regard, it is different from the corresponding federal rule, which sets the age at twenty years. This subsection extends the principle of the ancient documents exception to a “data compilation, in any form”; thus, the principle now includes data stored electronically. See Fed.R.Evid. 901(b)(8) advisory committee’s note. Ancient documents likewise constitute an exception to the hearsay rule. See Ala.R.Evid. 803(16).

Even if the document or data compilation is of the prerequisite age, its condition must be such as to create no suspicion concerning its authenticity. This requirement reflects preexisting Alabama law. See McMillan v. Aiken, 205 Ala. 35, 88 So. 135 (1920). See also C. Gamble, McElroy’s Alabama Evidence § 321.04 (4th ed. 1991).

A third requirement, beyond the prerequisites of age and condition, is that the proponent must show that the document or data compilation was taken from a place where, if authentic, it would likely be found. This requirement comports with prior Alabama law. See, e.g., Jordan v. McClure Lumber Co., 170 Ala. 289, 54 So. 415 (1910).

There is preexisting Alabama authority for the proposition that an ancient document of title to real property is not admissible under the ancient documents exception unless, during the applicable number of years, the party claiming under it either held possession of the land or could show some other guarantee of authenticity, such as payment of taxes or nonoccupation by others. See Sloss-Sheffield Steel & Iron Co. v. Lollar, 170 Ala. 239, 54 So. 272 (1910); White v. Farris, 124 Ala. 461, 27 So. 259 (1900). The requirement that possession of the land be shown to have been consistent with a document of title is not carried forward under these Rules of Evidence, at least not under Rule 901(b)(8). See Fed.R.Evid. 901(b)(8) advisory committee’s note. Compare Ala.R.Evid. 803(15) (specialized hearsay exception for title documents, which requires that dealings with the property have been consistent with the document).

Subsection (b)(9). Process or system. The foundational requirement of subsection (b)(9) applies whenever evidence of a result depends, for its accuracy, upon the process or system that produced it. The prerequisite showing is twofold: (1) evidence describing the process or system used to produce the result, and (2) evidence showing that the process or system used is accurate in the result it produces. This requirement is consistent with preexisting Alabama law. See, e.g., Ex parte Bush, 474 So.2d 168 (Ala.1985) (intoxication test); Evans v. Tanner, 286 Ala. 651, 244 So.2d 782 (1971) (X-ray). Compare C. Gamble, McElroy’s Alabama Evidence §§ 60.03(12) (drunkometer test), 123.05 (X-ray photographs); 490.01(4) (blood test to prove or disprove paternity) (4th ed. 1991). The committee intends that the rule will apply to computer results. See Transport Indem. Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7 Ariz. App. 117, 436 P.2d 629 (1968), cert. denied, 393 U.S. 1014 (1969). Nothing in subsection (b)(9) precludes the continued application of Alabama precedent requiring that the person making the test or operating the system be qualified to do so. Lyle v. Eddy, 481 So.2d 395 (Ala.Civ.App.1985). Additionally, evidence establishing a chain of custody or identification would remain necessary when the process involves the testing of a sample. See Nordan v. State, 143 Ala. 13, 39 So. 406 (1905). Even after the adoption of this subsection, the trial court will be free to take judicial notice of the accuracy of a process or system. See Ala.R.Evid. 201.

Nothing in subsection (b)(9) is intended to preclude the trial judge from considering, as a preliminary matter under Ala.R.Evid. 104(a), the general state of knowledge in the field as to whether a process or system does indeed produce an accurate result.

Subsection (b)(10). Methods provided by statute or rule. Rule 901 does not supersede methods of authentication or identification set forth in statutes or other rules promulgated by the Supreme Court of Alabama. As the introduction to the Rule 901(b) listing states, the methods of authentication or identification listed are merely illustrative. Consequently, alternative methods available by statute or rule of court are preserved. Statutory examples are as follows: Ala. Code 1975, § 26-17-12(b) (Uniform Parentage Act, providing foundation for admissibility of blood tests conducted to prove paternity); Ala. Code 1975, § 32-5A-194 (governing foundation required when blood, urine, breath, or other bodily substances have been tested for presence of alcohol or controlled substance). As a matter of illustration, the committee notes that alternative methods of authentication or identification are found in other rules of court. See, e.g., Ala.R.Civ.P. 10(c) (providing that a party may attach a written instrument to a pleading and thereby render it a part of the pleading); Ala.R.Civ.P. 56(e) (sworn or certified documents attached to affidavits supporting or opposing a motion for summary judgment may be considered by the court on question of whether there is a genuine issue of material fact justifying a trial); Ala.R.Civ.P. 44(a) (providing for authentication of foreign or domestic official records); Ala.R.Civ.P. 16(3) (recognizing the power of the trial court to adopt pretrial procedures that result in required authentication so as to avoid use of trial time for authentication).

The Alabama Rules of Civil Procedure likewise recognize the availability of authentication methods contained in “the rules of evidence at common law.” Ala.R.Civ.P. 44(c). The reasonable interpretation of this language, based upon other references in the Alabama Rules of Civil Procedure, is that authentication methods are available when contained in whatever set of evidence rules happens to be in force at the time the evidence is offered. See Ala.R.Civ.P. 33(b) (recognizing that answers to interrogatories may be used “to the extent permitted by the rules of evidence”); Ala.R.Civ.P. 43(a) (providing that: “All evidence shall be admitted which is admissible under statute or under the rules of evidence which are now applied or shall hereafter be applied in the courts of the State of Alabama”) (emphasis added).

Rule 902. Self-authentication.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1)   DOMESTIC PUBLIC DOCUMENTS UNDER SEAL. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2)   DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3)   FOREIGN PUBLIC DOCUMENTS. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them 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 report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any applicable statute or other rule of court.

(5)   OFFICIAL PUBLICATIONS. Books, pamphlets, or other publications purporting to be issued by public authority.

(6)   NEWSPAPERS AND PERIODICALS. Printed materials purporting to be newspapers or periodicals.

(7)   TRADE INSCRIPTIONS AND THE LIKE. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8)   ACKNOWLEDGED DOCUMENTS. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9)   COMMERCIAL PAPER AND RELATED DOCUMENTS. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10)   SELF-AUTHENTICATION UNDER STATUTES AND RULES OF COURT. Any signature, document, or other matter declared by any statute, state or federal, or any rule promulgated by the Alabama Supreme Court to be presumptively or prima facie genuine or authentic.

(11)   CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by an affidavit or sworn testimony of its custodian or other qualified person, certifying that the record:

(A)   was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B)   was kept in the course of the regularly conducted activity; and

(C)   was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this section must provide written notice of that intention to all adverse parties and must make the record and certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12)   CERTIFIED FOREIGN RECORDS OF REGULARLY CONDUCTED ACTIVITY. The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:

(A)   was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B)   was kept in the course of the regularly conducted activity; and

(C)   was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. [Amended 8-15-2013, eff. 10-1-2013.]

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Rule 901 sets out the foundations that must be established, through extrinsic proof, to authenticate or identify evidence. Some items of evidence, however, are self-authenticating, meaning that no extrinsic proof is necessary to authenticate or identify them. A self-authenticating document is said to be genuine on its face. Instances of such self-authentication have been developed historically by case law, statute, and rule of court. Rule 902 undertakes to collect and incorporate these instances, with some incidental expansion. See Fed.R.Evid. 902 advisory committee’s note.

Satisfaction of any self-authentication method contained in Rule 902 does not guarantee genuineness. Consequently, nothing in Rule 902 is intended to preclude the offering party’s opponent from disputing authenticity. Any document or record offered under Rule 902 must satisfy other evidentiary concerns, such as the hearsay rule and the best evidence rule. See, e.g., Ala.R.Evid. 803(8) (public records exception to the hearsay rule); Ala.R.Evid. 1005 (public records exception to the best evidence rule).

Paragraph (1). Domestic public documents under seal. This rule provides self- authentication for any domestic public document that bears a seal purporting to be that of the United States, any state or other domestic political entity or any subdivision thereof (as well as any territory or insular possession of the United States, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands), including any subdivision, department, officer, or agency thereof. In addition to the required governmental seal, such a self-authenticating document must carry a signature purporting to be an attestation or execution.

The nearest comparable provision under preexisting Alabama law is found in Rule 44(a)(1) of the Alabama Rules of Civil Procedure. It and this Rule 902 use identical language to describe the political entities whose official records are accorded self-authenticating status. Beyond the use of this common language, however, the two rules diverge. Ala.R.Civ.P. 44(a)(1) grants self-authentication to an official record in the form of an “official publication.” See Winegardner v. Burns, 361 So.2d 1054 (Ala.1978) (weather reports published by the Department of Commerce). Rule 902(1), on the other hand, accords such status to any public document bearing a seal and a signature purporting to be an attestation or execution. Additionally, Rule 44(a)(1) is broader, in that it applies to copies of such public records if the copies are properly attested or certified; Rule 902(1) applies only to originals. Rule 902(1) leaves self-authentication of copies of public records to be treated under Rule 902(4), other rules of court, or statutes.

Paragraph (2). Domestic public documents not under seal. Paragraph (1) establishes self-authentication for domestic public documents that are both under seal and signed. Paragraph (2) provides a means of self-authentication for domestic public documents that possess the signature of an officer or employee but carry no seal. Self-authentication for such unsealed documents arises when another officer, who has both a seal and official duties within the same political subdivision as the officer who signed but affixed no seal, certifies under seal that the signer possessed the official capacity and that the signature is genuine.

Alabama has no comparable preexisting rule. It should be noted, of course, that “official publications” of the documents referred to in paragraph (2), as well as copies of those documents, could be admissible if the offeror complies with Rule 44(a)(1), Ala.R.Civ.P. Copies could likewise be considered as authentic if they meet the requirements of Ala.R.Evid. 902(4) or other court rule or statute.

Paragraph (3). Foreign public documents. No extrinsic evidence is required to authenticate a foreign public document if it: (1) purports to have been executed or attested by a foreign official with authority to make the execution or attestation and (2) is accompanied by a final certification. The accompanying final certification must be made by a diplomatic or consular officer of the United States or such an officer of a foreign country who is “assigned or accredited to the United States.”

An alternative form of final certification for foreign public documents is provided in those instances where no direct certification has been made by the appropriate diplomatic or consular official. This would arise primarily when a chain of certificates has been attached but only the last certificate is executed by an official qualified under the rule. Suppose, for example, that A purposes to execute or attest a qualifying foreign public document. B, who is not a United States diplomatic or consular official and who is not a diplomatic or consular official assigned or accredited to the United States, certifies the genuineness of A’s signature and A’s official position. Subsequently, C – who is a qualified official – is unable to certify as to A but does certify that B’s signature is genuine and that B’s official capacity is as purported. Such a chain of certificates would constitute final certification under Rule 902(3)(B).

Paragraph (3) ends with two alternative and overriding exceptions to the final certification requirement. These exceptions are activated whenever (1) all parties have been given reasonable opportunity to investigate the authenticity and accuracy of the documents and (2) good cause is shown by the party seeking to be relieved of the customarily required final certification. When these two requirements are met, the court may take either of two actions. First, it may treat the document as presumptively authentic, without final certification. Alternatively, it may admit attested summaries of such records, with or without final certification.

This paragraph (3) principle of self-authentication for foreign documents is similar to that of Rule 44(a)(2) of the Alabama Rules of Civil Procedure, and the language of the two is nearly identical. Rule 902(3), however, is broader than Rule 44(a)(2) in that it applies to public documents, rather than being limited to public records. See Fed.R.Evid. 902(3) advisory committee’s note.

Paragraph (4). Certified copies of public records. This paragraph recognizes the most common form of self-authentication – i.e., self-authentication of certified copies of public records and reports. Additionally, however, it extends to certified copies of public documents that are authorized by law to be recorded or filed and that have in fact been recorded or filed in a public office. This paragraph does not apply to unrecorded public documents. See Fed.R.Evid. 904(4) advisory committee’s note.

Such a copy of a record, report, or officially filed or recorded document is deemed authentic only if it is accompanied by a certification made by the custodian or other person authorized to make the certification. The certificate must comply with Rule 902(1), (2) or (3) or with any statute or other rule of court. See Ala.R.Civ.P. 44(e). The prerequisites of the required certificate depend upon the type of document in question. A foreign document’s accompanying certification, for example, would be satisfactory if made in compliance with Ala.R.Evid. 902(3). A proper certification of a domestic public document would exist if, in compliance with Rule 902(1), the document bears a seal and a signature purporting to be an attestation or execution. If the document is signed, but not under seal, then its authenticity as a domestic public document could be satisfied by compliance with Rule 902(2).

Paragraph (5). Official publications. This paragraph dispenses with the need for preliminary proof of authenticity in regard to purportedly official publications. No proof is required that such publications were, in fact, issued by a public authority; rather, it suffices that the publication purports to have been so issued. While this paragraph is not so limited, its customary application is to statutes, court reports, and rules and regulations. See Fed.R.Evid. 902(5) advisory committee’s note. Admission of such official publications is consistent with preexisting Alabama practice, although paragraph (5) expands that preexisting practice. See, e.g., Ala.R.Civ.P. 44(a)(1) (granting self-authentication to an “official publication” of any domestic public record); Ala.R.Civ.P. 44(a)(2) (similar concept affording self-authentication to “official publication” of a foreign record).

Paragraph (6). Newspapers and periodicals. According self-authentication to printed materials purporting to be newspapers or periodicals is based upon the belief that the likelihood of forgery of such materials is slight. See Fed.R.Evid. 902(6) advisory committee’s note.

Accepting such materials as authentic, under this paragraph, does not necessarily answer other evidentiary concerns, such as materiality, relevancy, hearsay, etc. Likewise, accepting the authenticity of a newspaper or periodical does not resolve the issues of authority and responsibility for items contained therein. See Fed.R.Evid. 902(6) advisory committee’s note; Liberty Lobby, Inc. v. Anderson, 562 F.Supp. 201, 203 (D.D.C.1983), aff’d in part, rev’d in part, 746 F.2d 1563 (D.C.Cir.1984), vacated, 477 U.S. 242 (1986).

No corresponding principle exists under prior Alabama law. It should be noted, however, that Alabama has long provided statutory self-authentication status for published prices current and commercial lists when they are offered to prove the value of any article of merchandise. See Ala. Code 1975, § 12-21-113.

Paragraph (7). Trade inscriptions and the like. Preliminary proof of genuineness is not required in regard to inscriptions, signs, tags, or labels when they (1) purport to have been affixed in the course of business and (2) indicate ownership, control, or origin. A very good statement of the reliability grounds underlying this form of self-authentication is found in the advisory committee’s note to Fed.R.Evid. 902(7): “The risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them.”

Paragraph (7) is consistent with preexisting Alabama practice, which has exempted inscriptions on chattels from the rigors of the best evidence rule. See Benjamin v. State, 12 Ala. App. 148, 67 So. 792 (1915); C. Gamble, McElroy’s Alabama Evidence § 212.03 (4th ed. 1991). Additionally, admission of such evidence is consistent with those Alabama decisions holding that a price tag is admissible as evidence going to prove the value of stolen property. See, e.g., DeBruce v. State, 461 So.2d 889 (Ala.Crim.App.1984); C. Gamble, McElroy’s Alabama Evidence § 259.03 (4th ed. 1991). Paragraph (7) is likewise within the spirit of those decisions admitting evidence, in criminal prosecutions, of labels on bottles to prove the nature of the contents. See, e.g., Woods v. State, 247 Ala. 155, 22 So.2d 901 (1945); Kilpatrick v. State, 38 Ala.App. 256, 81 So.2d 926 (1955); C. Gamble, McElroy’s Alabama Evidence § 190.09 (4th ed. 1991). Last, the committee notes that the principle of paragraph (7) has been applied in decisions admitting containers with inscriptions to prove a person’s knowledge of the contents of the container. See, e.g., Chisolm v. State, 204 Ala. 69, 85 So. 462 (1920). See also C. Gamble, McElroy’s Alabama Evidence § 64.01 (4th ed. 1991).

Paragraph (8). Acknowledged documents. Acknowledged title documents have long been given the status of self-authenticating. See, e.g., Ala. Code 1975, §§ 12-21-61 (exempting proponent of duty to produce attesting witnesses if the writing is self-proving); 35-4-27 (self-proving status recognized for acknowledged deeds, powers of attorney, other instruments of conveyance, affidavits, and contracts); 35-4-65 (deeds and other conveyances of property). See also C. Gamble, McElroy’s Alabama Evidence § 233.01(4)(b) (4th ed. 1991). Paragraph (8) extends that self-proving status to all other acknowledged documents that are accompanied by a properly executed certificate or acknowledgment given by a notary public or other legally authorized officer. This expansion of the former practice is based upon the theory that, if self-authentication is accorded documents as important as those affecting titles, it should not be denied to other properly acknowledged documents. See Fed.R.Evid. 902(8) advisory committee’s note.

Paragraph (9). Commercial paper and related documents. The purpose of paragraph (9) is to embrace those principles of preexisting general commercial law that grant self-authentication status to commercial paper, signatures thereon, and documents relating thereto. This self-proving status arises only as provided under general commercial law. Alabama’s general commercial law in this regard is found largely, particularly as related to commercial paper, in the Uniform Commercial Code. The U.C.C.’s self-authentication provisions are thus incorporated into paragraph (9). See, e.g., Ala. Code 1975, §§ 7-1-202 (providing prima facie authenticity for documents issued by a third party to a contract – e.g., a bill of lading, a policy or certificate of insurance, an official weigher’s or inspector’s certificate, a consular invoice, or any other document authorized or required by contract); 7-3-307 (authenticity of signatures on negotiable instruments are taken as admitted unless denied in the pleadings); 7-3-510 (documents indicating that payment was refused – such as drawee’s stamp of nonpayment, a certificate of protest, or bank records reflecting dishonor – granted self-authentication in drawer or payee’s lawsuit based on dishonor); 7-8-105 (signature on negotiable instrument presumed genuine). Compare C. Gamble, McElroy’s Alabama Evidence §§ 267.01, 268.01, 268.02, 268.07, 268.08, 269.01, 269.03, 322.02(3) (4th ed. 1991).

Paragraph (10). Self-authentication under statutes and rules of court. This paragraph (10) recognizes the continued viability of preexisting and future rules of self-authentication found in both statutes and rules of court under which signatures, documents, and other matters are declared to be presumptively or prima facie genuine or authentic. See, e.g., Ala.R.Civ.P. 44(a)(1) (self-authentication of official publications); Ala.R.Civ.P. 44(a)(2) (self-authentication of foreign, public documents); Ala. Code 1975, §§ 12-21-90 (authorized notice from armed forces declared prima facie evidence of service person’s death), 12-21-92 (secretary of state’s publication of foreign interest rates received as presumptive evidence of such interest rates), 12-21-97 (ineffective, pre-1879 land patents prima facie evidence of sale or transfer and payment of the purchase money), 12-21-99 (sheriff’s deed prima facie evidence of recitals therein), 12-21-101 (religious registers of marriage, birth, and death constitute presumptive evidence of the facts stated therein). See also Ala.R.Civ.P. 44(g) (disinterested party’s historical work, book of science or art, or published map or chart granted prima facie status as evidence of general notoriety and interest); 26 U.S.C. § 6064 (1988) (signature on tax return prima facie genuine).

Advisory Committee’s Notes to Adoption of Rule 902(11) and (12) Effective October 1, 2013

Sections (11) and (12) have been added to Rule 902 to keep this rule consistent with Fed. R. Evid. 902, which was amended in 2000. The amendment adds two new sections to the rule on self-authentication. It sets forth a procedure by which parties can authenticate certain records of regularly conducted activity other than through the testimony of a foundation witness. See Ala. R. Evid. 803(6) (as amended effective October 1, 2013).

The intent behind the addition of Rule 902(11) and (12) is to provide an alternative means of authenticating records of regularly conducted activity. The amendment is not intended to give these records carte blanche admissibility. With the adoption of Rule 902(11) and (12), the amendment to Rule 803(6), and previously existing Rule 1001(2) and (3), the proponent of the evidence may now overcome authentication, hearsay, and best-evidence-rule objections with a properly certified copy of a record of regularly conducted activity, but all other valid objections remain. Thus, even if the proponent of the evidence satisfies the requirements of these sections, the evidence may still be excluded under applicable general rules of evidence. See 2 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 319.01(4) (6th ed. 2009) (”The fact that an offered item of evidence is properly authenticated does not grant it carte blanche admissibility. Other evidentiary objections may be lodged against its admission.”).

The notice requirements in Rule 902(11) and (12) are intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration.

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 903. Subscribing witness’s testimony unnecessary.

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

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Historic Alabama practice has embraced a rule of preference that generally calls for the production of attesting witnesses, or an accounting for their unavailability, whenever one is proving the execution of an attested document. See Snead v. Stephens, 242 Ala. 76, 5 So.2d 740 (1941). See also C. Gamble, McElroy’s Alabama Evidence § 233.01(1) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 9.3 (1990). Over the years, numerous exceptions have been created to this rule of preference, and under them the offering party is free to go directly to alternative proof of authenticity without producing the attesting witness or accounting for that witness’s unavailability. See, e.g., Ala. Code 1975, § 12-21-61 (declaring the attesting witness rule inapplicable to ancient writings, official bonds, writings that are only collaterally involved, writings as to which the maker testifies to proper execution, and writings that are self-proving); Ala. Code 1975, § 12-21-60 (permitting the execution of a writing to be proved without producing attesting witnesses if testimony of the maker is offered); Ala.R.Civ.P. 44(1) (containing many of the exceptions to the attesting witness rule embodied in the statutes just listed). Compare Ala.R.Evid. 901(b)(8) (recognizing the self-authentication of ancient documents); Ala.R.Evid. 902 (dealing with the self-authentication of certain public records or documents).

Rule 903 is identical to its federal counterpart and is consistent with the above-listed exceptions; it abandons across-the-board any necessity of producing attesting or subscribing witnesses unless the law governing the validity of the writing requires it. See Fed.R.Evid. 903. One instance under which attesting witnesses will have to be produced or their unavailability accounted for, after adoption of Rule 903, is found in the statutory provision calling for the production of available attesting witnesses to prove the proper execution of a will. Ala. Code 1975, § 43-8-169.

Rule 903 supersedes Ala.R.Civ.P. 44(i) insofar as the latter demands the production of, or an accounting for the unavailability of, subscribing witnesses in instances other than those in which it is required by the law governing the validity of the document in question.