710.3Subscribing Witness Unnecessary [Rule 903]
- A “subscribing witness” is a person who signs a document to verify that he or she witnessed another person signing the same document.
- Under Rule 903, a subscribing witness does not have to testify in order for his or her signature to be used to authenticate the associated document, unless the subscribing witness’s testimony is specifically required by another law.
The Basic Rule
Rule 903 – Subscribing Witness’ 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.
G.S. 8C-903. A “subscribing witness” is a person who “sees a writing executed, or hears it acknowledged, and at the request of the party thereupon signs his name as a witness.” Black’s Law Dictionary, 11th ed., 2019. Typical examples of a subscribing witness include a person who witnesses the signing of a will, or a notary public who verifies another person’s signature on a document. The official commentary to the rule explains that while the common law required that such attesting witnesses be produced in court, that requirement generally has been abolished except with respect to a limited class of documents that must be attested to be valid, such as wills in some states. G.S. 8C-903, Official Commentary.
Rule 903 has limited applicability to criminal cases, and it is rarely cited in North Carolina case law. Nevertheless, the rule is briefly discussed below in order to clarify how it relates to other rules regarding the admissibility of evidence that contains a signature.
Authentication and Foundation
When a party offers a signed document for the purpose of authenticating some other item of evidence (such as an affidavit signed by a records custodian to authenticate business records or a certificate signed by the clerk of court to authenticate copies of court records), live testimony from the authenticating witness to verify his or her signature on that affidavit or certification is not required. This is so not because of Rule 903, but rather because the affidavit or certification is only being offered for the limited and preliminary purpose of establishing the admissibility of the underlying records pursuant to Rule 104(a) and Rule 1101(b), and therefore the rules of evidence do not apply to the affidavit or certification itself. See G.S. 8C-104(a) (Questions of Admissibility Generally); G.S. 8C-1101(b)(1) (Rules Inapplicable: Preliminary Questions of Fact). For more information, see the related Evidence entry on Applicability of Rules [Rule 1101].
One situation where Rule 903 might be useful for prosecutors is when an officer acts as a “subscribing witness” by signing a document such as a rights waiver form or a written confession to verify that the officer witnessed the defendant signing the same document, but that officer is not available to testify at trial. There are no North Carolina cases specifically applying Rule 903 to this context, but it should be possible to authenticate the document by relying on the signature of the subscribing witness and other circumstantial evidence, even if the subscribing witness does not testify. See, e.g., United States v. Montalvo-Rangel, 437 Fed. Appx. 316 (5th Cir. 2011) (unpublished) (appellate court held that the trial judge did not err by admitting a signed rights waiver form and inculpatory statement taken from the defendant, even though the statement was transcribed by an officer who did not testify; there was no confrontation clause violation because “the ‘witness’ in such a situation is the individual dictating and signing the affidavit, not the one who transcribed it”).
As noted above, Rule 903 applies only to a “subscribing witness,” which means a person who signs a document in order to verify that he or she witnessed another person signing it. Therefore, Rule 903 has no applicability to the admissibility of original signature evidence, standing alone. For example, if the state seeks to introduce a signed writing as substantive evidence in the case (e.g., a threatening or incriminating letter purportedly signed by the defendant), and the defendant disputes the authenticity of the letter or signature, Rule 903 does not alter the state’s burden to authenticate the document or signature in some way. See, e.g., G.S. 8C-901(b)(2) (authentication by non-expert opinion as to the genuineness of handwriting); State v. Alston, 341 N.C. 198 (1995) (letter from murder victim was sufficiently authenticated by testimony from victim's mother that she was familiar with her daughter's handwriting and signature, and the letter at issue was written in her daughter's handwriting and bore her signature).
For more information on other ways that a proponent may authenticate an original signed writing, such as through testimony by a witness with knowledge or the distinctive characteristics of the writing itself, see the related Evidence entry on Authentication: Requirements and Methods [Rule 901].