Section 901.    Requirement of Authentication or Identification

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this section:

(1) Testimony of Witness with Knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation.

(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone Conversations. A telephone conversation, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if,

(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or

(B) in the case of a business, the conversation related to business reasonably transacted over the telephone.

(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public place, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient Documents. Evidence that a document

(A) is in such condition as to create no suspicion concerning its authenticity;

(B) was in place where it, if authentic, would likely be; and

(C) has been in existence thirty years or more at the time it was offered.

(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods Provided by Statute or Rule. Any method of authentication or identification provided by a rule of the Supreme Judicial Court of this Commonwealth, by statute, or as provided in the Constitution of the Commonwealth.

NOTE

Subsection (a). This subsection is derived from Commonwealth v. LaCorte, 373 Mass. 700, 704, 369 N.E.2d 1006, 1009 (1977), where the court acknowledged that a police witness at the trial properly authenticated a fingerprint card by his testimony that it was the same card he used to record the defendant’s prints at the time of the defendant’s arrest. “[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.” Commonwealth v. LaCorte, 373 Mass. at 704, 369 N.E.2d at 1009, quoting W.B. Leach & P.J. Liacos, Massachusetts Evidence 265 (4th ed. 1967). See Commonwealth v. Duddie Ford Inc., 28 Mass. App. Ct. 426, 435 n.10, 551 N.E.2d 1211, 1217 n.10 (1990), aff’d in part, rev’d in part, 409 Mass. 387, 566 N.E.2d 1119 (1991), quoting Proposed Mass. R. Evid. 901(a). This principle is applicable to photographs as well as other forms of documentary evidence. Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646, 779 N.E.2d 669, 673 (2002) (“Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw. But authenticity also can be established circumstantially by evidence sufficient to support a finding that the matter in question is what its proponent claims. Proposed Mass. R. Evid. 901[a].” [Quotation and citations omitted.]).

The foundational requirement of authentication is a preliminary question of fact for the trial judge. Commonwealth v. Figueroa, 56 Mass. App. Ct. at 646, 779 N.E.2d at 673. See Section 104(a), Preliminary Questions: Determinations Made by the Court.

Subsection (b)(1). This subsection is derived from Commonwealth v. LaCorte, 373 Mass. 700, 704, 369 N.E.2d 1006, 1009 (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, 678 N.E.2d 168, 171 (1997).

Subsection (b)(2). This subsection is derived from Commonwealth v. Ryan, 355 Mass. 768, 770–771, 247 N.E.2d 564, 565–566 (1969). See also Commonwealth v. O’Connell, 438 Mass. 658, 667, 783 N.E.2d 417, 425–426 (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: Relevancy Conditioned on Fact. However, when 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, 112 N.E. 850, 851 (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, 783 N.E.2d 417, 422–423 (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, 169 N.E. 145, 145 (1930). See also Section 104(a), Preliminary Questions: Determinations Made by the Court. 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, 76 N.E. 127, 133 (1905).

If a genuine specimen of handwriting is in evidence, the jury is capable of comparing a specimen of handwriting to it to determine whether the specimen is genuine. Commonwealth v. O’Laughlin, 446 Mass. 188, 209, 843 N.E.2d 617, 633–634 (2006). In the discretion of the court, the testimony of an expert witness may be admissible. 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, 70 N.E.2d 414, 416–418 (1946) (contents of letter used to authenticate signature). See also Connecticut v. Bradish, 14 Mass. 296, 300 (1817) (reply letter doctrine); Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 645–647, 779 N.E.2d 669, 673–674 (2002) (contents of photographs and authenticating circumstances).

Subsection (b)(5). This subsection is taken nearly verbatim from Commonwealth v. Williams, 8 Mass. App. Ct. 283, 291, 393 N.E.2d 937, 943 (1979), quoting Fed. R. Evid. 901(b)(5). See also Commonwealth v. Lykus, 367 Mass. 191, 201 n.4, 327 N.E.2d 671, 677 n.4 (1975); Lord Elec. Co. v. Morrill, 178 Mass. 304, 306, 59 N.E. 807, 807 (1901). On the other hand, “[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, 677 N.E.2d 233, 234 (1997). Cf. Commonwealth v. Hartford, 346 Mass. 482, 488, 194 N.E.2d 401, 405 (1963) (identification of caller by witness is permitted when caller identifies himself and there is other circumstantial evidence pointing to his or her identity).

Subsection (b)(6). This subsection is derived from Massachusetts Northeastern St. Ry. Co. v. Plum Island Beach Co., 255 Mass. 104, 114–115, 151 N.E. 84, 86–87 (1926). See also Commonwealth v. Anderson, 404 Mass. 767, 769–770, 537 N.E.2d 146, 147–148 (1989); Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 490–491, 156 N.E.2d 34, 36–37 (1959); Commonwealth v. Loach, 46 Mass. App. Ct. 313, 316, 705 N.E.2d 642, 644–645 (1999).

Subsection (b)(7). This subsection is derived from Kaufmann v. Kaitz, 325 Mass. 149, 152, 89 N.E.2d 505, 506 (1949). See Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 296, 197 N.E.2d 676, 678 (1964) (authentication of city ordinance by city clerk). 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.”).

There are a number of statutory provisions dealing 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)(8). This subsection is derived from Whitman v. Shaw, 166 Mass. 451, 456–461, 44 N.E. 333, 335–337 (1896). See also Green v. Chelsea, 41 Mass. 71, 76–77 (1873). 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, 384 N.E.2d 1212, 1215–1216 (1979) (radar); De Forge v. New York, New Haven & Hartford R.R. Co., 178 Mass. 59, 62–63, 59 N.E. 669, 670–671 (1901) (X-ray).

Subsection (b)(10). This subsection simply establishes that this section is 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, 241 N.E.2d 843, 844 (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 as part of a hearsay exception by means of an affidavit. See, e.g., G. L. c. 233, §§ 79, 79G, 79J.