710.2Self-Authentication [Rule 902]
- Documents, records, and other items of evidence covered by Rule 902 are considered “self-authenticating,” which means that extrinsic proof of the item’s authenticity is not required in order to admit it into evidence.
- Common examples of self-authenticating evidence admitted under this rule include certified copies of court records, public documents and reports under seal, and government publications.
- In some cases, the contents of the self-authenticating evidence may still be excluded on other grounds, such as confrontation clause or hearsay issues.
The Basic Rule
Rule 902 – Self-authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following…
G.S. 8C-902. Under Rule 901, discussed in the preceding entry, the proponent of an item of evidence is usually required to make a sufficient showing that the item “is what it purports to be” before the evidence may be admitted. The requisite showing can be made through testimony from a witness with knowledge, the distinctive characteristics of the evidence itself, or other comparable means. See generally G.S. 8C-901(b).
By contrast, Rule 902 recognizes that the “case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect, sometimes for reasons of policy but perhaps more often because practical considerations reduce the possibility of unauthenticity to a very small dimension.” G.S. 8C-902, Official Commentary. Thus, if an item of evidence falls within one of the ten categories listed in Rule 902 (primarily public documents and records, as discussed below), “extrinsic evidence of authenticity as a condition precedent to admissibility is not required.” G.S. 8C-902.
Although extrinsic evidence of authenticity is not “required” for evidence admitted under Rule 902, the party opposing its introduction may still attempt to challenge its authenticity if there is a legitimate basis for doing so. See G.S. 8C-902, Official Commentary (noting that “in no instance is the opposite party foreclosed from disputing authenticity”).
Types of Self-authenticating Documents
The ten categories of documents, records, and other items of evidence that are deemed self-authenticating under Rule 902 are summarized below.
Limited case law
There are relatively few published North Carolina criminal law cases that discuss the scope and applicability of Rule 902, and the cases do not always specify which prong of Rule 902 is being relied upon. Therefore, this entry cites to a number of unpublished cases, as well as federal cases interpreting comparable provisions of Federal Rule of Evidence 902, when necessary. The use of unpublished cases is generally considered “disfavored,” but it is permissible when no other published case would serve as well and the cited case has “precedential value.” N.C. R. App. P. 30(e)(3). For more information, see Jonathan Holbrook, “Unpublished Cases: What’s the Law?,” N.C. Criminal Law Blog, Sep. 11, 2018.
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 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.”
G.S. 8C-902(1). The rule applies to any document “bearing a seal” of a government office or agency that also contains a “signature purporting to be an attestation or execution” from a person in that office or agency. G.S. 8C-902(1). A document satisfying both of these criteria “does not require extrinsic evidence of authenticity as a condition precedent to admissibility.” G.S. 8C-902, Official Commentary. This rule has a “broad application,” but it is “most often encountered in practice in the form of acknowledgments or certificates authenticating copies of public records.” G.S. 8C-902, Official Commentary. The rule is based on the rationale that such a document is inherently trustworthy since “forgery is a crime and detection is fairly easy and certain.” G.S. 8C-902, Official Commentary.
See, e.g., State v. Carroll, 356 N.C. 526 (2002) (holding that the rules of evidence did not apply at the sentencing hearing, but even if they did, Florida court records which were “signed and certified in a manner verifying their authenticity” would be admissible as self-authenticating documents under Rule 902); State v. Watson, 179 N.C. App. 228 (2006) (out-of-state prison records were admissible as self-authenticating public documents: “extrinsic evidence of authenticity is not a condition precedent for the admissibility of documents bearing seal and certified copies of public records”); see also State v. Smith, 197 N.C. App. 403 (2009) (unpublished) (trial court properly admitted copies of indictment and judgment under Rule 902 to prove defendant’s prior conviction and establish his habitual felon status “even though the document in question contained a ‘stamp’ rather than ‘seal’” where an assistant clerk of court testified that it was “a stamped [and] true copy”); State v. Black, 182 N.C. App. 347 (2007) (unpublished) (certified copy of defendant’s birth certificate from register of deed’s office was admissible under Rule 902(1): “documents that, as here, bear an official seal are self-authenticating and do not need further authentication by a custodian of those records”), citing State v. Joyner, 295 N.C. 55 (1978) (in first degree rape case, properly authenticated birth certificate was “competent evidence of the facts recorded, viz, the date of defendant's birth”).
Domestic Public Documents Not Under Seal
“A document purporting to bear the signature in his 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."
G.S. 8C-902(2). A document that is purportedly signed by an officer or employee of a government office or agency, but which not does not bear an official seal as required under Rule 902(1), may be admissible under Rule 902(2). Such a document is admissible if “a public officer having a seal and having official duties” with that government agency certifies, under seal, that: (a) the person who signed the document works in an “official capacity” for the department or agency; and (b) that person’s signature on the document is genuine. G.S. 8C-902. The rationale for this rule is that if the document itself does not bear an official seal, there is a “greater ease of effecting a forgery under these circumstances,” and therefore “the rule calls for authentication by an officer who does have a seal.” G.S. 8C-902, Official Commentary.
See, e.g., United States v. Watson, 650 F.3d 1084 (8th Cir. 2011) (applying the comparable federal rule: “[t]he photographs of Watson and his fingerprint cards fall within the self-authentication provisions of Rule 902” where the documents were part of a “penitentiary packet” that was accompanied by a certificate signed by an official with the corrections department (Moore), and “the Secretary of State of the State of Oklahoma certified under seal, pursuant to Rule 902(2), that Moore was authorized to execute the certificate and that Moore's signature was genuine”); accord United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) (applying the comparable federal rule: “[t]he records of conviction, the photograph of Weiland, and his fingerprints fall within the self-authentication provisions of Rule 902(2)” since they were accompanied by a certificate signed by a records custodian for the state corrections department (Greene), along with a certificate under seal from the Secretary of State’s office verifying that “Greene was authorized to execute the certificate and that Greene's signature was genuine.”); see also United States v. Hamilton, 838 F.2d 1210 (4th Cir. 1988) (unpublished) (applying the comparable federal rule: holding that DMV records were admissible as a hearsay exception and “were self-authenticating under Fed. R. Evid. 902(2)”). Cf. In re J.D., 207 N.C. App. 377 (2010) (unpublished) (“There was no seal visible on the copy of the order included in the record, nor was there any affidavit accompanying the copy of the order in verification of its authenticity. Because there was no seal affixed to the clerk's certification, nor was there an affidavit attesting to the authenticity of the copy of the order, we find the authentication insufficient.”).
Foreign Public Documents
“A document purporting to be executed or attested in his 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 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.”
G.S. 8C-902(3) (reformatted for clarity). Under Rule 902(3), a foreign public document such as a birth certificate or property record issued by another country is admissible without further authentication if it meets the following requirements: The document must be (1) “executed or attested” by a person authorized to do so under the laws of that country; and (2) accompanied by a “final certification” verifying not only the genuineness of the underlying execution or attestation, but also the official position of either (a) the person who executed or attested to the document, or (b) another foreign official whose signature and position relates to or is in a chain of certification for the original execution or attestation. G.S. 8C-902(3).
This rule was adopted to provide “greater clarity, efficiency, and flexibility in the procedure for authenticating copies of foreign official records.” G.S. 8C-902, Official Commentary. To that end, the “final certification” of the record may be made by a qualified person at an embassy or consular office in (or of) the foreign country. G.S. 8C-902(3). Additionally, if all parties have had a reasonable opportunity to investigate the authenticity and accuracy of the documents, the court may, for good cause, “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.” G.S. 8C-902(3).
See, e.g., United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000) (records implicating defendants in espionage were properly admitted as foreign public documents under comparable federal rule where they were accompanied by a signed certification from a director in the German counter-intelligence service stating that they were true and correct copies, along with a final certification from the German embassy verifying that the director who signed them was authorized to certify those records). Accord United States v. Deverso, 518 F.3d 1250 (11th Cir. 2008) (victim’s birth certificate from the Philippines was properly admitted as a foreign public document under comparable federal rule); United States v. Pena-Jessie, 763 F.2d 618 (4th Cir. 1985) (diplomatic note demonstrating Panama's grant of permission was properly admitted under comparable federal rule); United States v. Howard-Arias, 679 F.2d 363 (4th Cir. 1982) (Colombian boat registration records were properly admitted as foreign public documents under comparable federal rule).
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) or complying with any law of the United States or of this State.”
G.S. 8C-902(4). Rule 902(4) codifies the longstanding practice of authenticating copies of public records by certificate. G.S. 8C-902, Official Commentary. Under this rule, public records, reports, and recorded documents, including data compilations, that were “authorized by law to be recorded or filed and [were] actually recorded or filed in a public office” are admissible into evidence without further authentication, as long as the records are accompanied by a certification that the records are correct. G.S. 8C-902(4). For more information on what qualifies as an “authorized record or report of a public office or agency,” see the related Evidence entry on the hearsay exception for Public Records [Rule 803(8)].
The certification that the records are correct must be made by the records custodian or another authorized person at that public office, and in a form that:
(a) complies with Rule 902(1), (2), or (3); or
(b) otherwise complies with any state or federal law.
G.S. 8C-902(4). See, e.g., State v. Carroll, 356 N.C. 526 (2002) (holding that the rules of evidence did not apply at the sentencing hearing, but even if they did, Florida court records which were “signed and certified in a manner verifying their authenticity” would be admissible as self-authenticating documents under Rule 902); State v. McCoy, 234 N.C. App. 268 (2014) (certified copy of defendant’s affidavit of indigency, signed by a deputy clerk of court, was “a self-authenticating document pursuant to […] Rule 902, and thus the affidavit did not need to be authenticated pursuant to Rule 901”); State v. Watson, 179 N.C. App. 228 (2006) (out-of-state prison records were admissible as self-authenticating public documents: “Extrinsic evidence of authenticity is not a condition precedent for the admissibility of documents bearing seal and certified copies of public records.”); State v. McNeil, 165 N.C. App. 777 (2004) (citing Rule 902(4), and finding the trial court did not commit plain error by allowing the state to introduce “three certified copies of judgment sheets from three of defendant's previous felony convictions” to prove defendant’s habitual felon status); see also State v. Smith, 162 N.C. App. 548 (2004) (unpublished) (citing Rule 902(4), and holding that “certification by a DMV employee that the original suspension notice was mailed to a defendant on a specified date at his address shown on the record is sufficient to admit a copy of the document in the prosecution of a defendant for driving while his license was revoked” and “the trial court did not err in allowing the DMV record into evidence to show that defendant's license had been revoked”).
Proving Local Ordinances
When the defendant is charged with violating a local ordinance such as a noise, speeding, loitering, or animal regulation, the ordinance must be specifically pled in the charging instrument by section number and caption (or, if not codified, by caption only) and the state must prove the validity of the ordinance. The validity of the ordinance is typically proved by offering into evidence either the full city or county code book maintained by the clerk that contains the ordinance, or by offering a copy of the ordinance that has been "certified under seal" by the city clerk. See G.S. 160A-79(b); 153A-50; State v. Pallet, 283 N.C. 705 (1973); State v. Wiggs, 269 N.C. 507 (1967); In re Jacobs, 33 N.C. App. 195 (1977); State v. Desperados, Inc., 194 N.C. App. 821 (2009) (unpublished).
Absence of records?
A records custodian or other authorized person also may certify that after a diligent search, he or she was unable to locate any matching public records for a particular name, date, event, or other criteria. See G.S. 8C-803(10) (party may “prove the absence of a record… or the nonoccurrence or nonexistence of a matter” by offering “evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry”). For more information, see the related Evidence entries on Public Records [Rule 803(8)] and Absence of Records [Rule 803(7)].
“Books, pamphlets, or other publications purporting to be issued by public authority.”
G.S. 8C-902(5). If a document or record is a “publication” issued by a public authority (e.g., published statutes and regulations, court reports, or promotional materials issued by a government agency), the document or record is considered self-authenticating under Rule 902(5), thereby “dispensing with [the need for] preliminary proof of the genuineness of purportedly official publications.” G.S. 8C-902, Official Commentary. See, e.g., Pierson v. Cumberland County Civic Center Commission, 141 N.C. App. 628 (2000) (excerpts from a county civic center commission's promotional publication entitled “The Official County Coliseum Complex News Magazine” were self-authenticating and admissible without any further extrinsic showing of legitimacy); see also United States v. Cecil, 836 F.2d 1431 (4th Cir. 1988) (applying the comparable federal rule and noting that “courts may take judicial notice of official governmental reports and statistics” under Rule 902(5) of the Federal Rules of Evidence).
Satisfying Rule 902(5) authenticates the publication, but the rules governing hearsay, confrontation rights, and other matters may still limit its admissibility. See G.S. 8C-902, Official Commentary (noting that Rule 902(5) “does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility”).
Newspapers and Periodicals
“Printed materials purporting to be newspapers or periodicals.”
G.S. 8C-902(6). Newspapers and periodicals are self-authenticating under Rule 902(6). This rule recognizes that “[t]he likelihood of forgery of newspapers or periodicals is slight,” and thus finds “no danger . . . apparent in receiving them.” G.S. 8C-902, Official Commentary. See, e.g., In re Carrsow-Franklin, 456 B.R. 753 (D.S.C. 2011) (applying the comparable federal rule: “As a periodical, the article from Reuters magazine would be self-authenticating pursuant to F.R.E. 902(6), which provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals.”).
However, as with official publications discussed above, the fact that an article from a newspaper or periodical is self-authenticating does not foreclose objections to the admissibility of the contents on other grounds such as hearsay and the right to confront witnesses. See G.S. 8C-902, Official Commentary (“Establishing the authenticity of the publication may, of course, leave still open questions of authority and responsibility for items therein contained.”). See, e.g., Gantt v. Whitaker, 57 Fed. Appx. 141 (4th Cir. 2003) (unpublished) (applying the comparable federal rule and noting that the Fourth Circuit has “consistently held that newspaper articles are inadmissible hearsay to the extent that they are introduced to prove the factual matters asserted therein.”) (internal quotation omitted); United States v. Mathis, 550 F.2d 180 (4th Cir. 1976) (applying the comparable federal rule and holding that a “newspaper article connecting a witness to a robbery was inadmissible hearsay, even for purposes of impeachment”).
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.”
G.S. 8C-902(7). Under Rule 902(7), “inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin are self-authenticating.” G.S. 8C-902, Official Commentary. The rationale behind this rule is that “[t]he risk of forgery is minimal” because “[t]rademark infringement involves serious penalties,” and “great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them.” G.S. 8C-902, Official Commentary.
Trade inscriptions offered under Rule 902(7) generally do not raise the same hearsay concerns that may be present with official publications offered under Rule 902(5) or newspapers and periodicals offered under Rule 902(6). While North Carolina’s appellate courts have not directly addressed the potential interplay between Rule 902(7) and the hearsay rules, a number of courts interpreting the comparable federal rule have held that trade inscriptions and the like are not hearsay because they do not constitute “statements” by a declarant. See, e.g., United States v. Koch, 625 F.3d 470 (8th Cir. 2010) (“While the better practice may be to prove the place of manufacture through a business record, we have previously rejected the claim that a manufacturer's inscription on a product is inadmissible hearsay”); United States v. Bowling, 32 F.3d 326 (8th Cir. 1994) (manufacturer’s name stamped on firearm was not “a statement of fact” subject to hearsay rule); United States v. Thody, 978 F.2d 625 (10th Cir. 1992) (“[T]he manufacturer’s imprint in the gun is not hearsay. It is technically not an assertion by a declarant as contemplated by the [hearsay rule].”).
Alternatively, other federal courts have held that even if trade inscriptions are hearsay, they are nevertheless admissible under one or more hearsay exceptions. See, e.g., United States v. Boles, 914 F.3d 95 (1st Cir. 2019) (collecting cases that have held trade inscriptions are not hearsay statements, but concluding that “[w]e need not decide the issue because, even assuming the inscriptions here are hearsay, we conclude that they are nonetheless admissible” under several different hearsay exceptions); United States v. Burdulis, 753 F.3d 255 (1st Cir. 2014) (“Made in China” inscription on a computer hard drive was a self-authenticating trade inscription, and while the inscription did constitute hearsay when it was offered to prove truth of the matter that drive was manufactured in another country, the trial court did not abuse its discretion by allowing it under the residual exception).
“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.”
G.S. 8C-902(8). Under Rule 902(8), if a document has been “acknowledged,” as shown by an accompanying certificate that was properly executed by a notary public or other authorized official, the acknowledged document is deemed self-authenticating. G.S. 8C-902(8). This rule is based on an earlier exception that made “acknowledged title documents” admissible as evidence in property matters without further proof of authentication. The rationale for expanding the rule was that if such an authentication suffices for important property title documents, it should likewise apply to other kinds of documents. G.S. 8C-902(8), Official Commentary. See State v. Upright, 257 N.C. App. 953 (2018) (unpublished) (in holding that defense counsel did not render ineffective assistance at trial, the appellate court noted that even if counsel had objected to the state’s introduction of bank records used to show that no deposit was made on the night in question, the records would have been admissible anyway as business records and “acknowledged documents” under Rule 902(8)); see also In re Lucks, 246 N.C. App. 515 (2016) (unpublished), rev’d on other grounds, 369 N.C. 222 (2016) (“Our Court has held a ‘certified, true copy’ of an affidavit sworn before a clerk of court is admissible under Rule 902(8)”), citing State v. McCoy, 234 N.C. App. 268 (2014).
Commercial Paper and Related Documents
“Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.”
G.S. 8C-902(9). Under Rule 902(9), “commercial paper” (i.e., a promissory note), the signatures on that paper, and other related documents are self-authenticating. G.S. 8C-902(9). Whether a given document can be considered "related" to the underlying commercial paper is determined in accordance with “general commercial law,” which means the Uniform Commercial Code or federal commercial law when federal commercial paper is involved. See G.S. 8C-902, Official Commentary (“Pertinent provisions of the Uniform Commercial Code are G.S. 25-1-202, 25-3-307, and 25-3-510, dealing with third-party documents, signatures on negotiable instruments, protests, and statements of dishonor.”).
This rule is more commonly used in civil cases, and is rarely applicable in criminal prosecutions. See generally Andrew v. United States, 91 F.Supp.3d 739 (M.D.N.C. 2015) (addressing authenticity of a promissory note and security agreement in a tax liability case); GEMC 2006-C1 Carrington Oaks, LLC, v. Weiss, 254 N.C. App. 344 (2017) (unpublished) (“North Carolina Rule of Evidence 902(9) makes commercial paper and ‘signatures thereon’ self-authenticating such that ‘[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required’”).
Presumptions Created by Law
“Any signature, document, or other matter declared by any law of the United States or of this State to be presumptively or prima facie genuine or authentic.”
G.S. 8C-902(10). Rule 902(10) is a catch-all provision which states that any signature, document, or other matter is self-authenticating if there is another state or federal law that declares the item to be “presumptively or prima facie genuine or authentic.” G.S. 8C-902(10). See, e.g., Coach, Inc. v. D 4 Apparel, 2013 WL 489658 (W.D. Tex. 2013) (unpublished) (applying the comparable federal rule and noting as an example that, pursuant to another federal statute, authenticated copies of records from the patent and trademark office are deemed admissible “in all cases wherein the originals would be evidence”).
The following North Carolina statutes provide for the authentication or admissibility of particular types of documents and records that frequently arise in criminal cases:
G.S. 8-18 (certified copies of instruments in office of register of deeds).
G.S. 8-34 (certified copies of official records).
G.S. 8-35 (certified copy of public records of state or federal government).
G.S. 8-35.1 (certified copy of DMV records of prior impaired driving convictions).
G.S. 8-35.2 (certified copy of clerk’s records of prior convictions).
G.S. 8-37 (certified copy of DMV records concerning ownership of motor vehicle).
G.S. 20-26(b) (certified copy of DMV driver’s license records).
G.S. 20-42 (certification of DMV records).
G.S. 20-139.1(e1) and (e2) (chemical analyst’s affidavit in DWI case)
G.S. 130A-93(h) (certified copy of vital records).
G.S. 130A-99 through -110 (birth certificates).
G.S. 130A-112 through -116 (death certificates).
G.S. 130A-392 (certified copy of autopsy reports)
Notwithstanding these statutes, prosecutors should bear in mind that using documents or reports that are testimonial in nature (e.g., using an autopsy report written by a non-testifying pathologist to prove the facts of the victim’s death) may implicate the defendant’s confrontation rights, in which case the witness must be available for cross-examination or the defendant’s confrontation rights must have been otherwise satisfied or waived. See generally State v. Locklear, 363 N.C. 438 (2009); United States v. Williams, 740 F.Supp.2d 4 (D.D.C. 2010).