Mass. R. Evid. 901
Mass. Guid. Evid. 901
Subsection (a). This subsection is derived from Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977). Authentication is a preliminary question of fact under Section 104(b), Preliminary Questions: Relevance That Depends on a Fact. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 30 & n.4 (2020); Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307 (2019) ("Authentication represents a special aspect of relevancy in that evidence cannot have a tendency to make the existence of a disputed fact more or less likely if the evidence is not that which its proponent claims" [quotation omitted].). This requires the judge to determine whether sufficient evidence exists for a reasonable jury (or fact finder in a jury-waived case) to find by a preponderance of the evidence that the matter in question is what its proponent claims. See Commonwealth v. Welch, 487 Mass. 425, 440 (2021); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014).
"[P]roof of authenticity usually takes the form of testimony of a qualified witness either (1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be" (quotation and citations omitted). LaCorte, 373 Mass. at 704. These principles are generally applicable to all evidence but are frequently applied to the following categories of evidence:
- Documents. Documents can be authenticated through competent evidence that the document is what it purports to be, which can include testimony from the creator of the document, testimony from a witness who is familiar with the document, or circumstantial facts that indicate the document's authenticity. See, e.g., Commonwealth v. Duddie Ford Inc., 28 Mass. App. Ct. 426, 435 (1990), aff'd in part, rev'd in part, 409 Mass. 387 (1991) (documents sufficiently authenticated by testimony of bank officer to be admitted to show what was on record at bank); Commonwealth v. Williams, 63 Mass. App. Ct. 615, 619 (2005) (nature and circumstances sufficient to authenticate document).
- Photographs. Photographs are usually authenticated by competent testimony that the photograph fairly and accurately depicts something the witness actually saw, or by circumstantial evidence to support a finding that the matter in question is what its proponent claims. Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002). Authentication of a photograph posted on a social media account may not require authentication of the social media account, unless the account's ownership is relevant. See Commonwealth v. Fielding, 94 Mass. App. Ct. 718, 721-722 (2019). Authentication of an enhanced photograph requires testimony from a person with computer expertise who can be examined and cross-examined about the enhancement process. Commonwealth v. Robertson, 489 Mass. 226, 235 (2022).
- Video Recordings. A surveillance video is typically authenticated by having an eyewitness testify that the video is a fair and accurate representation of what the witness saw on the day in question or by having someone testify about the surveillance procedures and the methods used to store and reproduce the video material, but a surveillance video may also be authenticated by circumstantial evidence alone, including its appearance, contents, substance, internal patterns, or other distinctive characteristics. Commonwealth v. Davis, 487 Mass. 448, 466 (2021) (cell phone video of surveillance video sufficiently authenticated by "plentiful circumstantial evidence"); Commonwealth v. Heang, 458 Mass. 827, 855-856 (2011) (store surveillance video properly authenticated by testimony of customer who had been there several hours before shootings, as well as by detective's description of process by which videotape was copied from store's system).
- Electronic or Digital Communications. See the Note to Subsection (b)(11) below.
An item of evidence must be authenticated even if the item is presented only through testimony and is not itself admitted. See Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587-588 (2017) (for police officer's testimony about contents of missing video to be admissible, Commonwealth first had to lay sufficient foundational facts to demonstrate, by a preponderance of the evidence, that video viewed by police officer was genuine representation of events that had occurred). Cross-Reference: Note "Identity" to Section 701, Opinion Testimony by Lay Witnesses.
Subsection (b)(1). This subsection is derived from Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977), quoting W.B. Leach & P.J. Liacos, Massachusetts Evidence 265 (4th ed. 1967). See also Commonwealth v. Wheeler, 42 Mass. App. Ct. 933, 935 (1997) (911 call not properly authenticated where neither party to conversation with knowledge of its substance testified).
Subsection (b)(2). This subsection is derived from Commonwealth v. Ryan, 355 Mass. 768, 770-771 (1969). See also Commonwealth v. O'Connell, 438 Mass. 658, 667 (2003). Before the lay opinion evidence is admitted, the trial judge must determine that the witness has sufficient familiarity with the genuine handwriting of the person in question to express an opinion that the specimen was written by that person. Nunes v. Perry, 113 Mass. 274, 276 (1873). See Section 104(b), Preliminary Questions: Relevance That Depends on a Fact. Where the evidence includes both authentic samples of the person's handwriting and samples of questionable origin, and where the witness has no prior familiarity, there is no necessity for lay opinion testimony and it should not be admitted. See Noyes v. Noyes, 224 Mass. 125, 130 (1916) ("The opinion of the jury under such circumstances is quite as good as that of the witness of ordinary experience who has no particular acquaintance with the genuine handwriting. There is, under such circumstances, no occasion for the opinion of the outsider of only ordinary intelligence.").
Subsection (b)(3). This subsection is derived from Commonwealth v. O'Connell, 438 Mass. 658, 662-663 (2003). Whether a specimen of handwriting is genuine, i.e., the handwriting of a named person, is a preliminary question of fact for the trial judge. See Davis v. Meenan, 270 Mass. 313, 314-315 (1930). See also Section 104(a), Preliminary Questions: In General. In a criminal case, if this issue is disputed, the trial judge also should submit the question to the jury. See Commonwealth v. Tucker, 189 Mass. 457, 473-474 (1905).
If a genuine specimen of handwriting is in evidence, the jury is capable of comparing a questioned article of handwriting to it to determine whether that article was written by the same person. Commonwealth v. O'Laughlin, 446 Mass. 188, 209 (2006) (expert analysis of handwriting on note is not necessary and comparison to genuine specimen by trier of fact is accepted practice in not necessary and comparison to genuine specimen by trier of fact is accepted practice in Massachusetts). In the discretion of the court, the testimony of an expert witness may also be admitted. Moody v. Rowell, 34 Mass. 490, 496-497 (1835).
Subsection (b)(4). This subsection is derived from Irving v. Goodimate Co., 320 Mass. 454, 459-460 (1946) (contents of letter used to authenticate signature). For example, hospital records showing the name of a patient that was the same alias used by the defendant in the past, with the same date of birth and the same mother's name, where the patient was treated for a leg injury similar to that which the victim's friend described inflicting on the attacker, provided sufficient foundation to allow the jury to conclude that the defendant was the individual whose hospital records were admitted into evidence. Commonwealth v. Cole, 473 Mass. 317, 321-323 (2015). See also Commonwealth v. Welch, 487 Mass. 425, 440 (2021) (relying on distinctive characteristics of text messages); Commonwealth v. Siny Van Tran, 460 Mass. 535, 547 (2011) (airline records containing distinctive internal codes); Connecticut v. Bradish, 14 Mass. 296, 300 (1817) (reply letter doctrine); Commonwealth v. Earl, 102 Mass. App. Ct. 664, 683 (2023) (letter containing details of crime that defendant would know, mailed from jail where he was detained); Commonwealth v. Biesiot, 91 Mass. App. Ct. 820, 824-826 (2017) (graffiti tags); Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 645-647 (2002) (contents of photographs and authenticating circumstances).
Subsection (b)(5). This subsection is taken from Commonwealth v. Williams, 8 Mass. App. Ct. 283, 291 (1979), quoting Fed. R. Evid. 901(b)(5). See also Commonwealth v. Lykus, 367 Mass. 191, 201 n.4 (1975); Lord Elec. Co. v. Morrill, 178 Mass. 304, 306 (1901). "A caller's mere self-identification, without more, is insufficient authentication to admit the substance of a telephone conversation." Commonwealth v. Howard, 42 Mass. App. Ct. 322, 324 (1997). Cf. Commonwealth v. Hartford, 346 Mass. 482, 488 (1963) (identification of caller by witness is permitted when caller makes identity known and there is other circumstantial evidence pointing to caller's identity). Apart from whether a witness is sufficiently familiar with a voice to identify the speaker, an in-court voice identification may be excluded on other grounds, including that the identification was the product of an unnecessarily suggestive identification procedure. See Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 874 (2001).
Subsection (b)(6). This subsection is derived from Massachusetts Northeastern St. Ry. Co. v. Plum Island Beach Co., 255 Mass. 104, 114-115 (1926). See Commonwealth v. Anderson, 404 Mass. 767, 769-770 (1989); Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 490-491 (1959); Commonwealth v. Loach, 46 Mass. App. Ct. 313, 316 (1999).
Subsection (b)(7)(A). This subsection is derived from Kaufmann v. Kaitz, 325 Mass. 149, 151 (1949). See Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 296 (1964) (authentication of city ordinance by city clerk). See also G. L. c. 233, § 73 (foreign oaths and affidavits, if taken or administered by a duly authorized notary public "within the jurisdiction for which he is commissioned, and certified under his official seal, shall be as effectual in this commonwealth as if administered or taken and certified by a justice of the peace therein"); G. L. c. 233, § 74 ("Acts of incorporation shall be held to be public acts and as such may be declared on and given in evidence."). Cf. G. L. c. 233, § 75 ("[P]rinted copies of any city ordinances . . . shall be admitted without certification or attestation, but, if their genuineness is questioned, the court shall require such certification or attestation thereof as it deems necessary.").
A number of other statutory provisions deal with authentication. See, e.g., G. L. c. 233, § 69 (admissibility of records and court proceedings of a court of another State or of the United States if authenticated "by the attestation of the clerk or other officer who has charge of the records of such court under its seal."); G. L. c. 233, § 73 (foreign oaths and affidavits); G. L. c. 233, § 74 (acts of incorporation); G. L. c. 233, § 75 (municipal ordinances); G. L. c. 233, § 76 (documents filed with governmental departments); G. L. c. 233, § 76A (documents filed with Securities and Exchange Commission); G. L. c. 233, § 76B (documents filed with Interstate Commerce Commission); G. L. c. 233, § 77 (copies of records, books, and accounts of banks and trust companies).
Subsection (b)(7)(B). This subsection is derived from G. L. c. 233, § 76; G. L. c. 90, § 30; Mass. R. Civ. P. 44(a)(1); Mass. R. Crim. P. 40(a)(1); and Commonwealth v. Deramo, 436 Mass. 40, 47-48 (2002). In Deramo, the Supreme Judicial Court held that merely copying an original attestation along with the underlying record did not satisfy the attestation requirement. Id. at 48 (concluding that a copy of the defendant's driver history from the Registry of Motor Vehicles was improperly admitted into evidence because it was not supported by an original attestation, but only by a copy of the attestation). But unless a statute or regulation provides otherwise, an attestation does not have to take the form of an original signature; it need only be an original mark, such as a stamp or facsimile. See Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 170 (2010) (holding that documents bearing the original stamped signature of the Registrar of Motor Vehicles were properly authenticated).
Any error in admitting a copy of a public record may be cured by comparing it to a properly authenticated record. Deramo, 436 Mass. at 49. See also G. L. c. 233, § 68 (proof of the genuineness of a signature to an attested instrument may be by the same methods used for proof of any signature).
Proof of Specific Types of Records. Records and court proceedings of a court of the United States or another State are admissible when relevant if authenticated "by the attestation of the clerk or other officer who has charge of the records of such court under its seal." G. L. c. 233, § 69. Printed copies of State statutes, acts, or resolves "which are published under its authority," and copies of city ordinances, town bylaws, and the rules and regulations of a board of alderman, "if attested by the clerk of such city or town, shall be admitted as sufficient evidence thereof in all courts of law and on all occasions." G. L. c. 233, § 75. Printed copies of rules and regulations of a State department, commission, board, or officer of the Commonwealth or any city or town authorized to adopt them, printed copies of city ordinances or town bylaws, or copies of the United States Code Annotated, the United States Code Service, and all Federal regulations, "shall be admitted without certification or attestation, but, if their genuineness is questioned, the court shall require such certification or attestation as it deems necessary." G. L. c. 233, § 75. Copies of books, papers, documents, and records in any department of State or local government, when attested by the officer in charge of the items, "shall be competent evidence in all cases equally with the originals ...." G. L. c. 233, § 76 (in most cases the genuineness of that officer's signature shall be attested by the Secretary of the Commonwealth or the clerk of a city or town, as the case may be). See also G. L. c. 233, § 76A (authentication of documents filed with the Securities and Exchange Commission); G. L. c. 233, § 76B (authentication of documents filed with the Interstate Commerce Commission). Copies of records of banks doing business in the Commonwealth are admissible in evidence on the same terms as originals if accompanied by an affidavit, taken before and under the seal of a clerk of a court of record or notary, "stating that the affiant is the officer having charge of the original records, books and accounts, and that the copy is correct and is full" insofar as it relates to the subject matter in question. G. L. c. 233, § 77. See also G. L. c. 233, § 77A (bank statement showing payment of a check or other item, if accompanied by a legible copy of the check or other item, "is competent evidence in all cases" and prima facie proof of payment of the amount of the check or other item).
Subsection (b)(8). This subsection is derived from Whitman v. Shaw, 166 Mass. 451, 456-461 (1896). See also Green v. Chelsea, 41 Mass. 71, 76-77 (1836). Compare Fed. R. Evid. 901(b)(8) and Proposed Mass. R. Evid. 901(b)(8), which shorten the period from thirty to twenty years.
Subsection (b)(9). This subsection is derived from Commonwealth v. Whynaught, 377 Mass. 14, 19 (1979) (radar), and De Forge v. New York, New Haven & Hartford R.R. Co., 178 Mass. 59, 62-63 (1901) (X-ray).
Subsection (b)(10). This subsection simply states that examples of permissible authentication are not exclusive. For example, the authenticity of a writing which a party intends to offer at trial may be established prior to trial by a demand for an admission as to genuineness under G. L. c. 231, § 69. See Waldor Realty Corp. v. Planning Bd. of Westborough, 354 Mass. 639, 640 (1968). See also Mass. R. Crim. P. 11(a)(2)(A) ("Agreements reduced to writing in the conference report shall be binding on the parties and shall control the subsequent course of the proceeding."); Mass. R. Civ. P. 44(c) (authentication of official records or the lack thereof from the Commonwealth or a foreign jurisdiction may be accomplished "by any other method authorized by law"). Also, certain statutes provide that records may be authenticated by means of an affidavit. See, e.g., G. L. c. 233, §§ 79, 79G, 79J. Cf. Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 256-257 (2021) (certification of GPS records under G. L. c. 233, § 79J, establishes authenticity but does not automatically establish other foundational requirements for admission under business records exception, which must still be proven by competent evidence).
Subsection (b)(11). This subsection is derived from Commonwealth v. Purdy, 459 Mass. 442, 450 (2011), where the court held that the same basic principles of authentication that apply to telephone calls and handwritten letters also apply to e-mails and other forms of electronic communication. Evidence that a person's name is written as the author of an e-mail or that the electronic communication originates from an e-mail or social-networking website that bears the person's name is not, standing alone, sufficient to authenticate the communication as having been authored, posted, or sent by the person. There must be some "confirming circumstances" sufficient for a reasonable jury to find by a preponderance of the evidence that the person authored, posted, or sent the communication. Id. at 450; Commonwealth v. Welch, 487 Mass. 425, 441 (2021) (confirming circumstances included evidence about devices on which messages were sent and received and content of those messages). Confirming circumstances may include the fact that a message contains an attached photograph of the defendant or a self-characterization, evidence that the defendant uses or owns the device on which the messages are stored, or the defendant's knowledge of the necessary passwords to access the messages on the device. Purdy, 459 Mass. at 450-451. See Welch, 487 Mass. at 441. Electronic communications may be authenticated by circumstantial evidence alone, without the live testimony of any of the participants. Commonwealth v. Gonzalez, 103 Mass. App. Ct. 74, 78 (2023). Uncorroborated testimony that other persons regularly used the device will not defeat authentication. Purdy, 459 Mass. at 451. See Welch, 487 Mass. at 442 (defendant's claim that another person may have authored text messages relevant to weight of evidence, not admissibility). A party is entitled to voir dire to explore the authenticity of contested electronic evidence that could significantly affect the credibility of a key witness. Commonwealth v. Troche, 493 Mass. 34, 47-50 (2023) (abuse of discretion to refuse defendant's request for voir dire of key prosecution witness where defense counsel received anonymous information, including contested social media posts attributed to witness, suggesting that witness had fabricated identification testimony).
Neither expert testimony nor exclusive access is necessary to authenticate the authorship of an e-mail or text message. Purdy, 459 Mass. at 451 n.7. See also Welch, 487 Mass. at 441-442 (combination of circumstances, including that cell phones from which text messages were sent and received were registered to defendant's and victim's e-mail accounts, were password protected, and were found with defendant and victim on night of killing; messages were replete with specific details of victim's and defendant's lives and relationship; text message from victim's phone to defendant's phone referenced defendant's distinctive nickname); Commonwealth v. Lopez, 485 Mass. 471, 478 (2020) (combination of circumstances, including sender's use of nicknames used by defendant for himself and girlfriend, content that mirrored defendant's statements to police, and defendant's regular access to girlfriend's cell phone, sufficient to permit finding that defendant was author of text messages sent from his girlfriend's cell phone); Commonwealth v. Middleton, 100 Mass. App. Ct. 756, 760 (2022) (sufficient that e-mail address and message content included diminutive nickname for victim specifically used by defendant and other personal details specific to defendant and that timing of messages coincided with extensions of abuse prevention order against defendant); Commonwealth v. Gonsalves, 99 Mass. App. Ct. 638, 642 (2021) (screenshot images of text messages sufficiently authenticated by, among other things, victim's identification of defendant's cell phone number, messages reflecting defendant's particular knowledge of relevant events, messages containing distinctive "recurring spelling errors" identified as typical in defendant's communications, and sheer number of messages); Commonwealth v. Meola, 95 Mass. App. Ct. 303, 314-315 (2019) (evidence that social-networking website message was sent from account in defendant's name, an attached video depicting defendant revealing intimate and personal details, the message's inclusion of a photo of defendant's daughter, and a "friend request" sent to victim from same account a few days later were confirming circumstances); Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011) (e-mails authenticated by actions of defendant who, for example, appeared at time and place indicated in an e-mail and answered telephone number provided in another e-mail).