Maine Restyling Note [November 2014]
The restyled Rule preserves the substantive differences between the Maine and Federal Rules. The proposed restyled Rule adopts the language of the Federal Rule 901(b)(3) in providing that one method of authentication is a comparison by the “trier of fact” of the item of evidence with an authenticated original. The use of the term “court” in lieu of “trier of fact” in the current Maine Rule may cause some confusion in a jury trial as it is clear that the Rule is intended to permit comparison by the trier of fact.
Advisers’ Note to former M.R. Evid. 901
(February 2, 1976)
The rule implements Rule 104(b), which requires authentication of evidence as a condition of its admissibility. Authentication is an aspect of relevancy. For instance, the relevancy of a letter of acceptance in a contract case against a corporation depends upon its having been written by someone with authority, real or apparent, to do so. Absent such authentication it is just as irrelevant as if it bore on an immaterial topic. Similarly, a telephone conversation may be irrelevant because the speaker has not been identified; in other words, the conversation has not been authenticated.
Subdivision (a), requiring authentication or identification as a condition precedent to admissibility, is universal law.
Subdivision (b) provides a nonexclusive list of ten examples of authentication or identification. Most of them are noncontroversial and reflect generally existing law.
Example (1) describes the most obvious method of authentication— testimony of a witness with direct knowledge that a matter is what it purports to be; e.g., “I wrote this document”; “I saw X sign it”; or “I found this gun at the scene”. The witness might also be one to account for the custody of the gun from the seizure to the time of trial.
Example (2) is in accord with customary practice regarding nonexpert handwriting identification. Anyone with a sufficient familiarity with another’s handwriting may testify. This may come from having seen the asserted author write, or from a bank clerk or teller. It is obvious that a lay person’s attempted distinction between a genuine writing and a skilled forgery is essentially valueless, and it is only good sense to obtain the testimony of a bona fide handwriting expert if the matter is of serious consequence. It is to be noted that the nonexpert cannot give testimony based on familiarity acquired for the purpose of the litigation, although the expert can.
Example (3) allows a handwriting expert to express an opinion on the basis of a comparison between a questioned document and an authenticated genuine specimen. This is the accepted practice. It also allows the court to make the comparison. The question of authentication is a matter of conditional relevancy depending upon fulfillment of a question of fact, which is governed by Rule 104(b).
Example (4) is rather vague in its wording, but it stands for the self- evident proposition that an item of evidence may sometimes be authenticated by its own special characteristics, viewed in the context of the case. An example is the familiar reply doctrine to the effect that the arrival by mail of a reply purporting to be from the addressee of a prior letter duly addressed and mailed is sufficient evidence of genuineness to go to the jury. Whelton v. Daly, 93 N.H. 150, 37 A.2d 1 (1944), is a leading case. Similarly, a communication may be authenticated as coming from a particular person if it discloses knowledge of facts known peculiarly by that person. Cf. Perley v. McGray, 115 Me. 398, 99 A. 39 (1916) (proof that copy of account was sent to defendant from fact that defendant acted on it a few days later by return of goods included in the account).
Example (5) allows voice identification, heard firsthand or by electronic transmission, by opinion based on familiarity obtained either before or after the speaking in question. Plainly such testimony may lack credibility, but this goes to its weight and not its admissibility.
Example (6) deals with outgoing rather than incoming telephone calls. A call from the blue by a person identifying himself as X requires additional proof of his identity, which may be by the techniques suggested in (b)(4) or
(b) (5). The calling of a number listed by the telephone company (see Rule 803(17) for the hearsay exception for the listing) supports the assumption that the number is the one reached. If the telephone number is that of a business, the listing is a holding out of willingness to conduct business by telephone, the person answering and purporting to speak for the concern is presumed to have authority to do so, and a person to whom such a call is transferred is likewise presumed to have authority to speak for the concern with respect to matters within its ordinary course of business.
This example also provides that circumstances, which may include the self-identifying statement of the person answering the outgoing call, may suffice. See Palos v. United States, 416 F.2d 438 (5th Cir. 1969) (informer dials listed number, asks for defendant and receives answer, “This is he,” held sufficient to authenticate); United States v. Benjamin, 328 F.2d 854 (2nd Cir. 1964) (to same effect). But the cases on this point are not unanimous.
Example (7) is in accord with standard practice. Public records have long been subject to authentication by proof of production from proper custody. The inclusion of “data compilation” is sufficient to cover information retrieval by computer.
Example (8) provides for authentication of ancient documents. Their admissibility as a hearsay exception has been dealt with in Rule 803(16). This subdivision is unorthodox in two respects. (1) It extends the rule to computerized data, and (2) it reduces the time period from thirty years to twenty years. This would change the Maine law enunciated in Landry v. Giguere, 128 Me. 382, 147 A. 816 (1929).
Example (9) faces up to present-day problems where the accuracy of a result depends upon the process or system that produces the result. The use of a computer printout would be covered, as would a reading on radar equipment, upon evidence showing that the system produces an accurate result. The Federal Advisory Committee pointed out that the rule is not intended to foreclose judicial notice of the accuracy of the system where appropriate.
Example (10) makes it clear that methods of authentication provided by statute are not superseded by the rule. An example of a Maine statute that would not be superseded is 13-A M.R.S.A. § 1306103 (various corporate records certified under oath of clerk, secretary or an assistant secretary of the corporation admissible). There are many others.
