Search
  • Brian Foley

Conroe Criminal Defense Attorney - Texas Rules of Evidence Series - Rule 902

Conroe Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.


Rule 902 is the rule describing evidence which does not need to be authenticated through the process described by 901. This is described as self-authenticating.


Rule 902. Evidence That Is Self-Authenticating. The most famous of these is a business record with accompanying affidavit. The rule actually includes a form that you can use to comply with this rule. If someone who works for a business or organization swears that they are familiar with the documents or records based on their job duties, swears that the records were made at or neat the time of each act, event, or information set forth in the records, and were made by of from information of a person with knowledge of the matters set forth, and that they were kept in the course of regularly conducted business activity then you may serve the opposing party at least 14 days before trial and at that point the records will be self authenticating.


Other popular ones are Public Documents that are sealed and signed or if not sealed then signed and certified. This typically takes the form of prior judgements that are certified by county or district clerks. It could also take the form of property records or any other document that bears the signature of an officer or employee of the federal government, state, district, commonwealth, territory, or "insular possession of the United States; the former Panama Canal Zone . . . . Yes really the former Panama Canal Zone can certify documents and they will be self authenticating.


Other notable exceptions:


  1. Official Publications for example a book, pamphlet, or other publication purporting to be issued by a public authority.

  2. Newspapers and Periodicals for example, printed material purporting to be a newspaper or periodical like time magazine.




RULE 902 The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:


(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.


(2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.


(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so.

(A) In General. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.

(B) If Parties Have Reasonable Opportunity to Investigate. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either: (i) order that it be treated as presumptively authentic without final certification; or

(ii) allow it to be evidenced by an attested summary with or without final certification.

(C) If a Treaty Abolishes or Displaces the Final Certification Requirement. If the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces the final certification requirement, the record and attestation must be certified under the terms of the treaty or convention.


(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a statute, or a rule prescribed under statutory authority.


(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.


(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.


(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.


(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.


(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.


(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A). (A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.


Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive. The proponent may use an unsworn declaration made under penalty of perjury in place of an affidavit.

1. I am the custodian of records [or I am an employee or owner] of __________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.

2. Attached are ____ pages of records. These are the original records or exact duplicates of the original records.

3. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. [or It is the regular practice of __________ to make this type of record at or near the time of each act, event, condition, opinion, or diagnosis set forth in the record.]

4. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. [or It is the regular practice of __________ for this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them.]

5. The records were kept in the course of regularly conducted business activity. [or It is the regular practice of __________ to keep this type of record in the course of regularly conducted business activity.] 6. It is the regular practice of the business activity to make the records.


(11) Presumptions Under a Statute or Rule. A signature, document, or anything else that a statute or rule prescribed under statutory authority declares to be presumptively or prima facie genuine or authentic.


BORING LEGAL DISCLAIMER


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.


For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.


For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.


1 view0 comments