In Re: Mississippi Rules of Evidence ( 2020 )

Serial: 232109
IN THE SUPREME COURT OF MISSISSIPPI
No. 89-R-99002-SCT
FILED
IN RE: MISSISSIPPI RULES OF JUN 18 2020
EVIDENCE OFFICE OF THE CLERK
SUPREME COURT
COURT OF APPEALS
EN BANC ORDER
Before the en bane Court is the Motion to Amend Certain Mississippi Rules of
Evidence (Motion No. 2019-1929), filed by the Supreme Court of Mississippi's Advisory
Committee on Rules.
The Committee proposes amending Rules 502, 803(6)-(8), 803(10), 803(16),
804(b )(3)(B), and 902(12)-(13) of the Mississippi Rules of Evidence. The motion was posted
for comment from May 28, 2019, to June 27, 2019.
After due consideration, we find that the motion should be granted as set forth in the
attached Exhibit A.
IT IS THEREFORE ORDERED that the Motion to Amend Certain Mississippi Rules
of Evidence is granted as set f01ih in the attached Exhibit A. The amendments shall be
effective on July 1, 2020.
IT IS FURTHER ORDERED that the Clerk of this Court must spread this order upon
the minutes of the Court and send a certified copy to West Publishing Company for
publication in the advance sheets of Southern Reporter, Third Series (Mississippi Edition),
and in the next edition of the Mississippi Rules of Court.
SO ORDERED, this the~ day of June,
CHAEL K. RANDOLPH,
HIEF JUSTICE
FOR THE COURT
AGREE: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE
AND GRIFFIS, JJ.
AGREE IN PART: KITCHENS AND KING, P.JJ.
2
EXHIBIT A
Rule 502. Lawyer-Client Privilege
(a) Definitions. In this rule:
(1) "Client" means a person, public officer, corporation, association, or any other
public or private organization or entity:
(A) to whom a lawyer renders professional legal services; or
(B) who consults a lawyer with a view to obtaining professional legal services from
the lawyer.
(2) "Client's representative" means:
(A) one authorized to:
(i) obtain professional legal services on behalf of the client; or
(ii) act on behalf of the client on the legal advice rendered; or
(B) an employee of the client with information the lawyer needs to render legal
services to the client.
(3) "Lawyer" means a person authorized - or who the client reasonably believes is
authorized - to practice law in any state or nation.
(4) "Lawyer's representative" means one employed by the lawyer to assist the lawyer
in rendering professional legal services.
(5) A communication is "confidential" if not intended to be disclosed to third persons
other than those:
(A) to whom disclosure is made to further rendition of professional legal services to
the client; or
(B) reasonably necessary to transmit the communication.
{6} "Lawyer-client privilege" means the protection that applicable law provides for
confidential lawyer-client communications.
(7) "Work-product protection" means the protection that applicable law provides for
tangible material ( or its intangible equivalent) prepared in anticipation of litigation or
for trial.
(e) Limitations on Waiver. The following provisions apply, in the circumstances set out,
to disclosure of a communication or information covered by the lawyer-client privilege or
work-product protection.
(1) Disclosure Made in a Mississippi Proceeding: Scope ofa Waiver. When the
disclosure is made in a Mississippi proceeding and waives the lawyer-client privilege
or work-product protection, the waiver extends to an undisclosed communication or
information in a Mississippi proceeding only if:
{A) the waiver is intentional;
{B) the disclosed and undisclosed communications or information concern the same
subject matter; and
1
(C) they ought in fairness to be considered together.
(2) Inadvertent Disclosure. When made in a Mississippi proceeding, the disclosure
does not operate as a waiver in a Mississippi proceeding if:
(A) the disclosure is inadvertent:
(B) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
(C) the holder promptly took reasonable steps to rectify the error, including (if
applicable) following MRCP 26(b)(6)(B)
[Restyled effective July 1, 2016: amended effective July I, 2020.]
Advisory Committee Note
The language of Rule 502 has been amended as part of the general restyling of the
Evidence Rules to make them more easily understood and to make style and terminology
consistent throughout the rules. These changes are intended to be stylistic only. There is
no intent to change any result in any ruling on evidence admissibility.
Subdivision (a) defines pertinent terms: who is a lawyer, who is a client, who are
their representatives. These definitions clarify Mississippi law. The only existing statute
relating to attorney-client relationship is M.C.A. § 73-3-37 which, among other things,
includes a provision that one of an attorney's duties is "to maintain inviolate the
confidence and, at every peril to themselves, to preserve the secrets of their clients .... "
The term "client" includes individuals, corporations and associations, and
governmental bodies. Mississippi decisional law is in accord with Rule 502(a)(l) in that
the privilege protects communications between an attorney and one who consults him
with a view towards retaining him, but who eventually decides not to employ him. See
Perkins v. Guy, 55 Miss. 153 (1877). The services provided by the attorney must be legal
services in order to be cloaked with the privilege. Services which are strictly business or
personal do not enjoy the privilege. See McCormick, Evidence, 92. The Mississippi court
has not recognized the privilege in those cases in which the attorney is merely a
scrivener. Rogers v. State, 266 So. 2d 10 (Miss. 1972).
Rule 502(a)(2) defines representatives of a client. This takes on particular
significance in regards to corporate clients. This group of employees who may be a
client's representatives is larger than the "control group". The "control group" was
formerly one of the leading tests for determining which corporate employees had the
benefit of the privilege. See Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677,
66 L. Ed. 2d 584 (1981), in which the Supreme Court construed the language of the
Federal Rules of Evidence as invalidating the control group test and so rejected it.
2
The definition of lawyer in Rule 502(a)(3) covers any person licensed to practice
law in any state or nation. It includes persons who are not lawyers but whom the client
reasonably believes are lawyers.
The definition of representative of the lawyer in Rule 502(a)(4) is broadly
designed to include the lawyer's employees and assistants. It also includes experts that
the lawyer has hired to assist in the preparation of the case. It does not extend to an expert
employed to be a witness. This conforms to existing Mississippi practice. Dictum in
Wilburn v. Williams, 193 Miss. 831, 11 So. 2d 306 (1943), indicated that the court might
have followed such a definition if the issue was before it.
A communication which takes place in the presence of a third party is not
confidential unless it complies with the statement in Rule 502(a)(5). If the third party
does not fall within these categories in this subdivision, his presence deems the
communication not to be confidential. See Taylor v. State, 285 So. 2d 172 (Miss. 1973);
Ferrel v. State, 208 Miss. 539, 45 So. 2d 127 (1950).
The test for confidentiality is intent. Thus, a communication made in public cannot
be considered confidential. Intent can be inferred from the particular circumstances.
Rule 502(a)(6) and (7) define "lawyer-client privilege" and "work-product
protection," but make no attempt to alter the law on whether a communication or
information is protected under the lawyer-client privilege or work-product protection as
an initial matter. Subdivision (e) governs the scope of waiver and the effect of
inadvertent disclosure.
Subdivision (b) is a statement of the rule. The rule is drafted in such a way as to
prevent eavesdroppers from testifying about the privileged communication. See the
Advisory Committee Notes to Deleted FRE 503 [which is identical to U.R.E. 502(b)].
The privilege extends to statements made in multiple party cases in which
different lawyers represent clients who have common interests. Each client has a
privilege as to his own statements. The FRE Advisory Committee Notes to Deleted Rule
503 state that the rule is inapplicable in situations where there is no common interest to
be promoted by a joint consultation or where the parties meet on a purely adversary basis.
Subdivision (b) provides that the privilege includes lawyer to client
communications as well as client to lawyer communications. See Barnes v. State, 460 So.
2d 126, 131 (Miss. 1984 ).
Subdivision ( c) establishes that the privilege belongs to the client or his personal
representative. Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). The lawyer's claim is
3
limited to one made on behalf of the client; he himself has no independent claim. See
United States v. Jones, 517 F.id 666 (5th Cir.1974).
Subdivision (d) excludes certain instances from the privilege. Rule 502(d)(l) does
not extend the privilege to advice in aid of a future crime or fraud. The provision that the
client knew or reasonably should have known of the criminal or fraudulent nature of the
act is designed to protect the client who is mistakenly advised that a proposed action is
lawful. See McCormick, Evidence, 75. Existing law in Mississippi on this point is
unclear. Dicta in two 19th century cases suggest that the privilege did apply to protect
statements regarding the client's motives in fraudulent schemes. See Parkhurst v.
McGraw, 24 Miss. 134 (1852); Lengsfield and Co. v. Richardson and May, 52 Miss. 443
(1876). Additionally, the federal appellate court in Hyde Construction Co. v. Koehring
Co., 455 F.2d 337 (5th Cir. 1972), has determined that the Mississippi courts would allow
the privilege when an attorney, acting as the client's alter ego, commits a tort or fraud. It
is uncertain, if this is an accurate reflection of the scarce Mississippi law on the point, but
clearly under Rule 502( d)(l) the privilege in such a case would not apply.
Rule 502(d)(2) permits no privilege when the adversaries in a case claim the
privilege from the same deceased client. The general rule is that the privilege survives
death and may be claimed by the deceased's representative. However, this rule makes no
sense in some cases; for instance, in will contests when various parties claim to be the
representative of the decedent. Only at the end of the litigation will the court have
determined who is the deceased's successor, and until it has made that determination,
neither party is entitled to invoke the privilege.
Rule 502(d)(3) permits the use of statements made between a lawyer and his client
when a controversy later develops between them, such as in a dispute over attorney's fees
or legal malpractice.
Rule 502(e) addresses two main issues. The first is the effect of certain disclosures
of matters protected by the lawyer-client privilege or as work product. The second is the
concern over otherwise unnecessary litigation costs incurred to protect against
inadvertent waiver - especially in cases involving electronic discovery - that often bear
no proportionality to what is at stake in the case. See S. Saltzburg, M. Martin, & D. Capra
1 Federal Rules o(Evidence Manual§ 502.02(1] (11th ed. 2016) ("[T]he common-law
rules on waiver of privilege and work product were responsible for rising costs of
discovery, especially discovery of electronic information. In complex litigation the
lawyers spend significant amounts of time and effort to preserve privilege and work
product by screening protected documents from discovery .... Moreover, an enormous
amount of expense was being put into document production in order to protect against
inadvertent disclosure of privileged information, because the producing party risked a
ruling that even a mistaken disclosure can result in a subject matter waiver. [L]awyers'
fear of waiver led to extravagant claims of privilege, i.e., privilege claims often covered
4
non-privileged material because lawyers were concerned about waiver if they
underclaimed").
Rule 502(e)(l) provides that an intentional disclosure, if a waiver, generally
results in a waiver only of the communication or information disclosed; a subject matter
waiver (of either privilege or work product) is reserved for those unusual situations in
which fairness requires a further disclosure of related, protected information, in order to
prevent a selective and misleading presentation of evidence. See Rule 502(e)(2). The
language concerning subject matter waiver - "ought in fairness" - is taken from Rule
106, because the animating principle is the same. Under both rules, a party that makes a
selective, misleading presentation that is unfair to the adversary opens itself to a more
complete and accurate presentation. An inadvertent disclosure of protected information
can never result in a subject matter waiver.
Under Rule 502(e)(2)(B), considerations bearing on the reasonableness of a
producing party's efforts include the number of documents to be reviewed and the time
constraints for production. See Paul W. Grimm, Lisa Yurwit Bergstrom & Matthew P.
Kraeuter, Federal Rule o(Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L.
& Tech. 8, ,r 43 (2011) ("Determining whether reasonable precautions have been taken
cannot be done in a vacuum, and considerations of how much is at stake in the litigation
and the resources of the party that inadvertently produced the privileged or protected
information are both appropriate and necessary ...."). A party that uses advanced
analytical software applications and linguistic tools in screening for privilege and work
product may effectively protect against a finding of waiver. See Kandel v. Brother
International Corp .. 683 F. Supp. 2d 1076 (C.D.Cal. 2010) (Party hired a consultant to
scan its servers and archives and put documents into a database that could be reviewed.
Counsel provided consultant and document review team with a protocol containing
specific instructions on designating protected materials). But see Peterson v. Bernardi.
262 F.R.D. 424 (D.N.J. 2009) (party took minimal steps to protect against inadvertent
disclosure, and general statement that a privilege review was done, without any
supporting details, was entitled to little weight). The rule does not require the producing
party to engage in a post-production review, as that would increase the cost of discovery
and impose the very thing the rule seeks to avoid. But the rule does require the producing
party to follow up on any obvious indications that a protected communication or
information has been produced inadvertently.
Under Rule 502(e)(2)(C), a party must act promptly and reasonably once it
discovers its mistaken disclosure. While a party is not required to check after production
to determine whether a mistake has been made, it must seek the return of the material
once the party is on notice of the error. See S. Saltzburg, M. Martin, & D. Capra 1
Federal Rules o(Evidence Manual§ 502.02[3J[d] (11th ed. 2016) (An "innocent recipient
of mistakenly disclosed confidential information could be put at a disadvantage if the
disclosing party would sit on its right to get the information back. As time passes, the
5
recipient could be entering the information into its own databases, providing it to its own
experts, using it to inform pleadings, and so on. As time passes, it gets more costly to
unring the bell struck by mistakenly disclosed information.")
Rule 502( e)(4) enables the use of confidentiality orders to limit the costs of
privilege review, especially important in cases involving electronic discovery. The rule
contemplates enforcement of "claw-back" and "quick peek" arrangements as a way to
avoid the excessive costs of pre-production review for privilege and work product. See
Zubulake v. UBS WarburgLLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003). For an example
of a Rule 502(e)(4) order, see S. Saltzburg, M. Martin, & D. Capra 1 Federal Rules of
Evidence Manual§ 502.02[3][g] (11th ed. 2016). A confidentiality order can cover
intentional disclosures as well as mistaken ones. Under Rule 502(e)(5), an agreement on
the effect of disclosure is binding only on the parties to the agreement; if incorporated
into a court order under Rule 502(e)(4), it is binding in other proceedings as well.
["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July
1, 2016, to note restyling; amended effective July 1, 2020.]
Rule 803. Exceptions to the Rule Against Hearsay - Regardless of Whether the
Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by - or from information transmitted by -
someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902( 11 ); and
(E) neither the opponent does not show that the source of information fl0F or the
method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not
included in a record described in paragraph (6) if:
6
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of the information Her
or other circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the prosecution in a criminal case, factual findings
from a legally authorized investigation; and
(B) neither the opponent does not show that the source of information Her or other
circumstances indicate a lack of trustworthiness.
(10) Absence of a Public Record. Testimony- or a certification under Rule 902 - that a
diligent search failed to disclose a public record or statement it
!A} the testimony or certification is admitted to prove that:-
ill the record or statement does not exist; or
.{ill a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind: and
(B) in a criminal case, a prosecutor who intends to offer a certification provides
written notice of that intent at least 14 days before trial, and the defendant does not
object in writing within 7 days of receiving the notice - unless the court sets a
different time for the notice or the objection.
(16) Statements in Ancient Documents. A statement in a document that is at least 20
years old that was prepared before January 1, 1998, and whose authenticity is established.
[Restyled effective July 1, 2016; amended effective July 1, 2020.]
Advisory Committee Note
7
(6) Records of Regularly Conducted Activity. Rule 803(6) is an expansion of
the common law business records exception used in Mississippi. The records must be
those of a regularly conducted business activity; however, the definition of business is
broader than pre-rule practice in Mississippi permitted. It includes records of non-profit
institutions and associations. It is important to note that the custodian as well as other
qualified witnesses may testify. Thus, it is not necessary to call or to account for all
participants who made the record.
However, the source of the material must be an informant with knowledge who is
acting in the course of the regularly conducted activity. This is exemplified by the leading
case of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) which is still the applicable
law today under the rule. That case held that a police report which contained information
obtained from a bystander was inadmissible; the officer qualified as one acting in the
regular course of a business, but the informant did not.
Rule 803(6) specifically includes diagnoses and opinions as proper subjects of
admissible entries, as well as the traditionally admissible entries pertaining to acts, events
and conditions. The rule calls for the exercise of judicial discretion if there is an
indication of a lack of trustworthiness. This permits the court to take into account the
motivation of the informant.
Rule 803(6) provides that if the proponent has established the stated requirements
of the exception - regular business with regularly kept record, source with personal
knowledge, record made timely, and foundation testimony or certification - then the
burden is on the opponent to show a lack of trustworthiness. It is appropriate to impose
the burden of proving untrustworthiness on the opponent, as the basic admissibility
requirements tend to guarantee trustworthiness in the first place and thus suffice to
establish a presumption that the record is reliable. "[Bly showing that the records
regularly record regularly conducted activity, the proponent has made a sufficient
showing that the records are trustworthy enough to be admissible. The proponent should
not have to make an extra affirmative showing of trustworthiness." Saltzburg, Martin, &
Capra, Federal Rules of Evidence JVIanual, vol. 4, § 803.02[7][g] (11th ed.) (2017).
The opponent, in meeting its burden, is not necessarily required to introduce
affirmative evidence of untrustworthiness. For example, the opponent might argue that a
record was prepared in anticipation of litigation and is favorable to the preparing party
without needing to introduce evidence on the point. The Supreme Court has noted that
the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or
'necessitates."' Rowlandv. California Men's Colony, 506 U.S. 194,200 0993). A
determination of untrustworthiness necessarily depends on the circumstances.
The reference to self-authentication under Rule 902(11) is to confirm that the
predicate for records under this exception may be by affidavit in appropriate cases.
8
(7) Absence of Entry in Records Kept in Accordance with the Provision of
Paragraph (6). A record's failure to mention a matter which would ordinarily be
contained in it is admissible to prove the nonexistence of the matter. This is innovative in
Mississippi. Traditional Mississippi courts have admitted evidence of the absence of
matter in the record only in the cases of public records.
While it has been unclear whether the absence of information was even hearsay,
some courts have treated it as such and have found no exception to apply. Rule 803(7)
settles the question of admissibility by clearly making the absence factor an exception.
Rule 803(7) provides that if the proponent has established the stated requirements
of the exception- set forth in Rule 803(6)-then the burden is on the opponent to show a
lack of trustworthiness. Rule 803(7) thus maintains consistency with the trustworthiness
clause of Rule 803(6).
(8) Public Records and Reports. Public records and reports have been admissible
in evidence as an exception to the hearsay rule. Countless statutory provisions in
Mississippi formerly provided for the admission of public records. Additionally, there
was similar development in the common law. Ludlow v. Arkwright-Boston Mfrs. Mut.
Ins. Co., 317 So. 2d 47 (Miss 1975). Subparagraphs (A)(i) and (A)(ii) are similar to
Mississippi practice. The rule makes no distinction between state and local records.
Subparagraph (A)(iii) adds the new element to the exception as traditionally applied in
Mississippi. Subparagraph (A)(iii) provides that some investigative reports may be
treated as hearsay exceptions. To be admissible they must be factual findings made in an
investigation which was conducted pursuant to lawful authority. Opinions and
conclusions contained in such reports should be excluded.
The experience in other jurisdictions which have adopted an identical rule has
been that judges are exercising great caution in admitting these reports. Often they are
being excluded if based on hearsay or the opinions of those not involved in the
preparation of the report. The rule expressly gives judges the discretion to exclude such
reports.
Rule 803(8) provides that if the proponent has established the stated requirements
of the exception - prepared by a public office and setting out information as specified in
the Rule - then the burden is on the opponent to show a lack of trustworthiness. It is
appropriate to impose the burden of proving untrustworthiness on the opponent. as the
basic admissibility requirements tend to guarantee trustworthiness in the first place and
thus suffice to establish a presumption that the record is reliable. See Saltzburg. Martin.
& Capra. Federal Rules of Evidence Manual, vol. 4. § 803.02[9J[a] 01 th ed.) (2017)
("Because of the strong presumption of reliability accorded to public reports. the burden
of proving untrustworthiness is borne by the party seeking exclusion."); Ellis v.
9
International Playtex. Inc., 745 F.2d 292, 301 (4th Cir. 1984) (Public records rightly carry
a presumption of reliability, hence it is up to the opponent to "demonstrate why a time-
tested and carefully considered presumption is not appropriate."). Rule 803(8) thus
maintains consistency with the trustworthiness clause of rule 803(6).
The opponent, in meeting its burden, is not necessarily required to introduce
affirmative evidence of untrustworthiness. For example, the opponent might argue that a
record was prepared in anticipation of litigation and is favorable to the preparing party
without needing to introduce evidence on the point. The Supreme Court has noted that
the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or
'necessitates."' Rowland v. California Men's Colony, 506 U.S. 194, 200 (1993). A
determination of untrustworthiness necessarily depends on the circumstances.
Even when admissible, public records under Subparagraph (A)(iii) may only be
used in civil cases and in criminal cases on behalf of a defendant against the state. To
permit the state to use such reports against a defendant would be to create confrontation
rights problems.
(10) Absence of Public Record or Entry. Rule 8Q3(10) is also similar to pre rule
Mississippi lav,r. See, e.g., JVI.C.A. § 13 1 83 (repealed effeetive July 1, 1991). \¥hile the
Mississippi statute formerly provided for evidenee in the form of a eertifieation, Rule
803(10) gives the possibility of a seeond form, i.e., oral testimoRy of the seareh.
Rule 803(10) permits proof by oral testimony or a certificate. For criminal cases,
subparagraph (B) encompasses the requirements of Melendez-Diaz v. Massachusetts. 557
U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), by incorporating an approved notice
and demand procedure. See also Conners v. State. 92 So. 3d 676 (Miss. 2012). The
Melendez-Diaz Court declared that, consistent with the Confrontation Clause, the
prosecutor may introduce a testimonial certificate against an accused who is given
advance notice and does not timely demand the presence of the official who prepared the
certificate.
(16) Statements in Ancient Documents. The ancient documents rule is a
traditionally recognized exception in Mississippi. Under this rule the eommon law period
of time is redueed to a minimum of twenty years. The exception is limited to statements
in documents prepared before January 1, 1998, due to the risk that the exception could
otherwise be used as a vehicle to admit vast amounts of unreliable electronically stored
information (ESI). Given the exponential development and growth of electronic
information since 1998, the hearsay exception for ancient documents had become a
10
possible open door for large amounts of unreliable ESL as no showing of reliability needs
to be made to qualify under the exception.
In certain cases - such as cases involving latent diseases and environmental
damage - parties must rely on hardcopy documents from the past. The ancient documents
exception remains available in such cases for documents prepared before 1998. The need
to admit old hardcopy documents produced after January 1, 1998, should decrease,
because reliable ESI is likely to be available and can be offered under a reliability-based
hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially
given its flexible standards on which witnesses might be qualified to provide an adequate
foundation. And Rule 803(24) can be used to admit old documents upon a showing of
reliability-which will often (though not always) be found by circumstances such as that
the document was prepared with no litigation motive in mind, close in time to the
relevant events. The limitation of the ancient documents exception is not intended to raise
an inference that 20-year-old documents are, as a class, unreliable, or that they should
somehow not qualify for admissibility under Rule 803(24). Finally, many old documents
can be admitted for the non-hearsay purpose of proving notice, or as party-opponent
statements.
The limitation of the ancient documents hearsay exception is not intended to have
any effect on authentication of ancient documents. The possibility of authenticating an
old document under Rule 901(b)(8) - or under any ground available for any other
document - remains unchanged.
A party will often offer hardcopy that is derived from ESL A good deal of old
information in hardcopy has been digitized or will be so in the future. Under Rule
803(16), a document is "prepared" when the statement proffered was recorded in that
document. For example, if a hardcopy document is prepared in 1995, and a party seeks to
admit a scanned copy of that document, the date of preparation is 1995 even though the
scan was made long after that - the subsequent scan does not alter the document. The
relevant point is the date on which the information is recorded, not when the information
is prepared for trial. However, if the content of the document is itself altered after the cut-
off date, then the hearsay exception would not apply to statements that were added in the
alteration.
[Amended July 1, 2009; "Advisory Committee Note" substituted for "Comment," effective June
16, 2016; amended July 1, 2016, to note restyling: amended effective July 1, 2020.]
11
Rule 804. Exceptions to the Rule Against Hearsay - When the Declarant Is
Unavailable as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the
person believed it to be true because, when made, it was so contrary to the
declarant' s proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant's claim against someone else or to expose the declarant to
civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability aad is offeretl to eJrnulpate the aeeused.
Advisory Committee Note
(b)(3) Statement Against Interest. Rule 804(b)(3) expands the common law
exception of declaration against interest. Traditionally, courts have recognized two
declarations against interest, pecuniary and proprietary. The rule extends the exception to
declarations against penal interest on the theory that such declarations are reliable. No
reasonable person would make such a statement and invite possible criminal prosecution
if the statement were not true.
Subparagraph (b)(3)(B) is eoneemed with hears&)' whieh ineulpates the tleelarant
but eJrnulpates the eriminal defendant. Unless sueh a statement eaa be eorroboratetl as
reliable, it 1Nill be eJrnlutled. provides that the corroborating circumstances requirement
applies to all declarations against penal interest offered in criminal cases. A unitary
approach to declarations against penal interest assures both the prosecution and the
accused that the Rule will not be abused and that only reliable hearsay statements will be
admitted under the exception. The Rules does not address the use of the corroborating
circumstances for declarations against penal interest offered in civil cases.
12
In assessing whether corroborating circumstances exist. the credibility of the
witness who relates the statement is not a proper factor for the court to consider in
assessing corroborating circumstances. To base admission or exclusion of a hearsay
statement on the witness's credibility would usurp the jury's role of determining the
credibility of testifying witnesses.
[Amended effective July 1, 2009, to update citations and add subsection (b)(6); amended
effective December 1, 2015, to update subsection (a)(5); "Advisory Committee Note" substituted
for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling: amended
effective July 1, 2020.]
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:
02) 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 and notice
requirements of Rule 902(11).
03) 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 and notice requirements of Rule 902(11).
[Restyled effective July 1, 2016; amended effective July 1, 2020.]
Advisory Committee Historical Note
Advisory Committee Note
13
02) Certified Records Generated by an Electronic Process or System. Rule
902(12) sets forth a procedure by which parties can authenticate certain electronic
evidence other than through the testimony of a foundation witness. As with the provisions
on business records in Rules 902(11), the expense and inconvenience of producing a
witness to authenticate an item of electronic evidence is often unnecessary. It is often the
case that a party goes to the expense of producing an authentication witness, and then the
adversary either stipulates authenticity before the witness is called or fails to challenge
the authentication testimony once it is presented. Rule 902(12) provides a procedure
under which the parties can determine in advance of trial whether a real challenge to
authenticity will be made, and can then plan accordingly.
Nothing in Rule 902(12) limits a party from establishing authenticity of electronic
evidence on any ground provided in these Rules, including through judicial notice where
appropriate.
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. The Rule specifically allows the
authenticity foundation that satisfies Rule 90l(b)(9) to be established by a certification
rather than the testimony of a live witness.
The reference to the "certification requirements of Rule 902(11)" 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(12) is
solely limited to authentication, and any attempt to satisfy a hearsay exception must be
made independently. ·
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, assume that a
plaintiff in a defamation case offers what purports to be a printout of a webpage on which
a defamatory statement was made. Plaintiff offers a certification under this Rule in which
a qualified person describes the process by which the webpage was retrieved. Even if that
certification sufficiently establishes that the webpage is authentic, defendant remains free
to object that the statement on the webpage was not placed there by defendant. Similarly,
a certification authenticating a computer output, such as a spreadsheet, does not preclude
an objection that the information produced is unreliable - the authentication establishes
only that the output came from the computer.
14
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.
(13) Certified Data Copied from an Electronic Device, Storage Medium, or
File. Rule 902(13) sets forth a procedure by which parties can authenticate data copied
from an electronic device, storage medium, or an electronic file, other than through the
testimony of a foundation witness. As with the provisions on business records in Rules
902(11), the expense and inconvenience of producing an authenticating witness for this
evidence is often unnecessary. It is often the case that a party goes to the expense of
producing an authentication witness, and then the adversary either stipulates authenticity
before the witness is called or fails to challenge the authentication testimony once it is
presented. The amendment provides a procedure in which the parties can determine in
advance of trial whether a real challenge to authenticity will be made, and can then plan
accordingly.
Nothing in Rule 902(13) limits a party from establishing authenticity of electronic
evidence on any ground provided in these Rules, including through judicial notice where
appropriate.
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 original and copy reliably attest to the fact
that they are exact duplicates. This amendment allows self-authentication by a
certification of a qualified person that the person 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 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.
The reference to the "certification requirements of Rule 902(11 )" is only to the
procedural requirements for a valid certification. There is no intent to require, or permit, a
15
certification under this Rule to prove the requirements of Rule 803(6). Rule 902(13) is
solely limited to authentication, and any attempt to satisfy a hearsay exception must be
made independently.
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.
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
["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July
1, 2016, to note restyling: amended effective July 1. 2020.]
16