Miss. R. Evid. 902

As amended through March 21, 2024

Rule 902 - Evidence That Is Self-authenticating

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. 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. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

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

(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 federal statute, or a rule prescribed by the Mississippi Supreme Court pursuant to 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)Presumptions Under a Federal or State Statute. A signature, document, or other matter that a Mississippi or federal statute declares to be presumptively or prima facie genuine or authentic.

(11)Certified Records of a Regularly Conducted Activity. A record that meets the requirements of Rule 803(6), if a certificate of the custodian or another qualified witness complies with subparagraph (A).

(A)Certificate. The certificate must show:

(i) the custodian's or witness's first hand knowledge of the making, maintenance, and storage of the record; and

(ii) that the record complies with Article X and Rules 803(6)(A)-(C) and 901(a).

A certificate relating to a foreign record must also be accompanied by the final certification required by paragraph (3).

(B)Notice. Before the trial or hearing at which the record will be offered, the proponent must give an adverse party notice of the intent to offer the record - and must provide a copy of the record and certificate - so that the party has a fair opportunity to state any objection. Otherwise, the record is not self-authenticating under this paragraph (11).

(C)Making Objections. An adverse party waives any objection that is not:

(i) stated specifically in writing; and

(ii) served within 15 days after receiving the notice required by subparagraph (B), or at a later time that the parties agree on or that the court allows.

(D)Hearing and Ruling on Objections. The proponent must schedule a hearing on any objection, and the court should determine admissibility of the record before the trial or hearing at which it may be offered. If the court cannot do so, the record is not self-authenticating under this paragraph (11).

(E)Sanctions. In a civil case after the trial or hearing, the proponent may move that the objecting party and attorney pay the expenses of presenting the evidence necessary to have the record admitted. The court must so order, if it determines that the objection raised no genuine question and lacked arguable good cause.

(F)Definitions. In this paragraph "certificate" means:

(i) for a domestic record, a written declaration under oath or attestation given under penalty of perjury; and

(ii) for a foreign record, a written declaration signed in a foreign country that, if falsely made, would subject the maker to criminal penalty under that country's laws.

(12)Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification and notice requirements of Rule 902(11).

(13)Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification and notice requirements of Rule 902(11).

Miss. R. Evid. 902

Amended 1/31/1990; 7/1/1997; restyled eff. 7/1/2016; amended effective 7/1/2020.

Advisory Committee Historical Note.

Effective January 31, 1990, Rule 902(3) was amended to make a technical change. 553-556 So. 2d XXVII (West Miss. Cas. 1990).

Effective July 1, 1997, Rule 902 was amended to add subsection (11) to allow predicates for records of regularly conducted activities to be proven by affidavit._____So. 2d_____(West Miss. Cases).

Advisory Committee Note

The language of Rule 902 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. As before, Rule 902 uses numbered paragraphs as first-level formatting, rather than typical lower-case lettered subdivisions, because changing the structure of the Rule would disrupt electronic search results and thus impose transaction costs that outweigh any benefit in strictly consistent formatting. Rule 902(11) has been restructured with additional subparagraphs and items. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Rule 902 lists situations in which authenticity is taken as sufficiently established for purpose of admissibility without extrinsic evidence. However, the opponent of the evidence may always challenge the authenticity. In essence, the rule shifts the burden to the opponent. In 1990 a technical amendment was made. No substantive change was made or intended.

(1) Domestic Public Documents Under Seal. The underlying policy rests on the fact that forgery is easily detected, and the possibility of the documents not being genuine is, thus, remote. A wide range of Mississippi public records fall into this category, including acknowledgments and certificates authenticating copies of public records.

(2) Domestic Public Documents Not Under Seal. This provision permits the admission in evidence of documents signed by an official whose office has no seal, provided a second official having a seal certifies, under seal, the genuineness of the first signature.

(3) Foreign Public Documents. Rule 902(3) extends the presumption of authenticity to foreign official documents by a procedure of certificate. It is derived from M.R.C.P. 44(a)(2). M.C.A. 13-1-101 (repealed effective July 1, 1991) formerly governed this procedure.

(4) Certified Copies of Public Records. Numerous statutes already exist in Mississippi providing for the authentication of copies of public records by certificate. The certificate itself qualifies as a public document, receivable as authentic when it conforms to Rule 902(1), (2), or (3). See M.R.C.P. 44(a). The certification under Rule 902(4) pertains to public records and not to public documents in general.

(5) Official Publications.M.R.C.P. 44(a)(1) has the same effect.

(6) Newspapers and Periodicals. This is new practice in Mississippi. The rule is based on the premise that the possibility of forgery in this area is negligible.

(7) Trade Inscription and the Like. Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762 (1932) early established this rule in Mississippi. The possibility of forgery is too slim for the court to require a more detailed method of authentication.

(8) Acknowledged Documents. This extends existing Mississippi law. In Mississippi the self-authentication of acknowledged documents was formerly available through a limited number of statutes, e.g., M.C.A. 13-1-97, 13-1-143 (both repealed effective July 1, 1991).

(9) Commercial Paper and Related Documents. Mississippi practice already allows for authentication of commercial paper pursuant to U.C.C. 1-202, 3-307,and 8-105.

(11) Certified Records of Regularly Conducted Activities. This method of self-authenticating the records of regularly conducted activities is suggested by Rule 902(11) of the Uniform Rules of Evidence. It is intended to allow, in proper cases, the introduction of these records without the expense, trial time consumption and inconvenience to witnesses who are called to provide what is often purely formalistic and undisputed predicate evidence. Part (A) permits proof by affidavit of the qualifications of the witness and the usual predicates of authenticity, the Best Evidence Rule and the Rule 803(6) hearsay exception. Part (B) explains the required certification. Part (C) requires that the proponent have early anticipation of the use of this method so there is

time before trial for notice, objections and a hearing. If objections are not decided before the trial, the proponent must plan to call the witness. The sanction for frivolous objections in civil cases is based on the M.R.C.P. 37(c) sanction for failure to admit.

When self-authenticating records are offered against the defendant in criminal cases, the rights of the defendant under the confrontation clauses of Federal and State Constitutions must be considered.

(12) Certified Records Generated by an Electronic Process or System. Rule 902(12) sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11), the expense and inconvenience of producing a witness to authenticate an item of electronic evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. Rule 902(12) provides a procedure under which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.

Nothing in Rule 902(12) limits a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule. The Rule specifically allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness.

The reference to the "certification requirements of Rule 902(11)" is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(12) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A certification under this Rule can establish only that the proffered item has satisfied the admissibility requirements for authenticity. The opponent remains free to object to admissibility of the proffered item on other grounds - including hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the webpage was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable - the authentication establishes only that the output came from the computer.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert. Such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

(13) Certified Data Copied from an Electronic Device, Storage Medium, or File. Rule 902(13) sets forth a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11), the expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure in which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.

Nothing in Rule 902(13) limits a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by "hash value." A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that the person checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.

The reference to the "certification requirements of Rule 902(11)" is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(13) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A certification under this Rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other grounds - including hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant.

["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling; amended effective July 1, 2020.]