(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.
(A) Originals. Evidence that an original book, paper, document, or record 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 a public office where items of this nature are kept is admissible.
(B) Copies. A copy of any of the items described in subsection (A), if authenticated by the attestation of the officer who has charge of the item, shall be admissible on the same terms as the original.
(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.
(11) Electronic or Digital Communication. Electronic or digital communication, by confirming circumstances that would allow a reasonable fact finder to conclude that this evidence is what its proponent claims it to be. Neither expert testimony nor exclusive access is necessary to authenticate the source.
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.]). See also Commonwealth v. Heang, 458 Mass. 827, 855–856, 942 N.E.2d 927, 950 (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).
The foundational requirement of authentication is a preliminary question of fact for the trial judge. Howe v. City of Boston, 311 Mass. 278, 281–282, 41 N.E.2d 1, 3–4 (1942). See Section 104(b), Preliminary Questions: Relevancy Conditioned on Fact.
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 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)(A). This subsection is derived from Kaufmann v. Kaitz, 325 Mass. 149, 151, 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). 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.”).
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)(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, 762 N.E.2d 815, 821 (2002).
“[A]n attested copy of a document is one which has been examined and compared with the original, with a certificate or memorandum of its correctness signed by the persons who have examined it. Thus, to qualify as an attested copy there must be a written and signed certification that it is a correct copy. The attestation of an official having custody of an official record is the assurance given by the certifier that the copy submitted is accurate and genuine as compared to the original.” (Citations and quotations omitted.)
Id. In Commonwealth v. Deramo, the Supreme Judicial Court held that “[m]erely making a copy of the original attestation along with a copy of the underlying record does not serve the purpose of the attestation requirement.” Id. at 48, 762 N.E.2d at 821. See id. (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). 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, 920 N.E.2d 322, 324 (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. Commonwealth v. Deramo, 436 Mass. at 49, 762 N.E.2d at 822. 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, 44 N.E. 333, 335–337 (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, 384 N.E.2d 1212, 1215–1216 (1979) (radar), and 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.
Subsection (b)(11). This subsection is derived from Commonwealth v. Purdy, 459 Mass. 442, 450, 945 N.E.2d 372, 381 (2011), where the court held that the same basic principles of authentication apply to e‑mails and other forms of electronic communication as apply to, for example, telephone calls and handwritten letters. 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 Web site 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, 945 N.E.2d at 380–381. In Purdy, the confirming circumstances were that the e‑mails were found on the hard drive of the computer that the defendant acknowledged owning and to which he supplied all necessary passwords, and at least two e‑mails contained either an attached photograph of the defendant or a self-characterization. Id. at 450–451, 945 N.E.2d at 381. “The defendant’s uncorroborated testimony that others used his computer regularly . . . was relevant to the weight, not the admissibility, of the messages.” Id. at 451, 945 N.E.2d at 381–382. The court stated that neither expert testimony nor exclusive access is necessary to authenticate the authorship of an e‑mail. Id. at 451 n.7, 945 N.E.2d at 381 n.7. See also Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356, 996 N.E.2d 488, 496 (2013) (Commonwealth had burden to demonstrate that communications contained in Myspace pages were authentic, “which in these circumstances meant that they were created by or at the direction of the defendant”); Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674–675, 941 N.E.2d 1143, 1147 (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).