(Applicable to District Court and Superior Court)

(a) Authentication.

(1) Domestic. An official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy. If the record is kept in any other state, district, commonwealth, territory or insular possession of the United States, or within the Panama Canal Zone or the Trust Territory of the Pacific Islands, any such copy shall be accompanied by a certificate that such custodial officer has the custody. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the 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 the documents, the court may, for good cause shown, (i) admit an attested copy without final certification, or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.

(c) Other Proof. This rule does not prevent the proof, by any other method authorized by law, of the existence of, or the lack of, an official record, or of entry, or lack of entry therein.

Reporter's Notes

This rule is identical to Mass.R.Civ.P. 44. See Fed.R.Crim.P. 27, which incorporates by reference the provisions of Fed.R.Civ.P. 44. 

Prior to the promulgation of this rule, no statute or rule expressly provided for the proof of official records in criminal cases. The practice developed of utilizing the law applicable to the proof of such records in civil cases. Rule 40 formally recognizes that practice. 

Like its civil counterpart, Rule 40 is addressed only to authenticating an official record or establishing the lack thereof. It does not govern the authentication of unofficial records, nor does it regulate the extent to which the contents of an authenticated official record are admissible. 

The term “official record” has been defined generally as including records of any governmental entity, 8A J. MOORE, FEDERAL PRACTICE para. 27.02 at 27-6 (1978), and more particularly as “all documents prepared by public officials pursuant to a duty imposed by law or required by the nature of their offices....” Olender v. United States , 210 F.2d 795, 801 (9th Cir.1954). See Fed.R.Evid. 901(b)(7), 902(1)-(3). 

Subdivision (a). It should be noted that subdivision (a)(1), unlike its federal counterpart, does not require certification by a judge or other officer of the status of the custodial official if the records are kept within the Commonwealth. As for domestic records kept outside the Commonwealth (subdivision [a][1] ) and foreign records (subdivision [a][2] ), the requirement of double certification is retained. Subdivision (a)(2) is in all other respects in accord with former Massachusetts practice. 

Subdivision (b). This subdivision permits the written statement of a custodial officer that no particular record can be found, authenticated pursuant to subdivision (a), to suffice as proof that no such record exists. 

Subdivision (c). Rule 40(c) incorporates all pre-existing statutory methods of proving the existence of, or lack of the existence of, official records. Those statutes are unaffected by the promulgation of this rule. See, e.g., G.L. c. 46, § 19 (records relative to birth, marriage, and death); G.L. c. 233, §§ 76, 76A, 76B (records of departments of government).

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