Guide to Evidence  Article IX: Authentication and identification

(a) In General 

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. 

(b) Examples

The following are examples only—not a complete list—of evidence that satisfies the requirement: 

(1) Testimony of a Witness With Knowledge 

Testimony that an item is what it is claimed to be. 

(2) Nonexpert Opinion About Handwriting

A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. 

(3) Comparison by an Expert Witness or the Trier of Fact

A comparison with an authenticated specimen by an expert witness or the trier of fact. 

(4) Distinctive Characteristics and the Like

The appearance, contents, substance, internal pat­terns, or other distinctive characteristics of the item, taken together with all the circumstances. 

(5) Opinion About a Voice

An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker. 

(6) Evidence About a Telephone Conversation 

For a telephone conversation, evidence that a call was made to the number assigned at the time to 

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called, or 

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. 

(7) Evidence About Public Records

(A) Originals. Evidence that a document was recorded or filed in a public office as authorized by law, or that a purported public record or statement is from the office where items of this kind are kept. 

(B) Copies. A copy of any of the items described in Subsection (7)(A), if authenticated by the attestation of the officer who has charge of the item, is admissible on the same terms as the original. 

(8) Evidence About Ancient Documents

For a document, evidence that it 

(A) is in a condition that creates no suspicion about its authenticity; 

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

(C) is at least thirty years old when offered. 

(9) Evidence About a Process or System

Evidence describing a process or system and showing that it produces an accurate result. 

(10) Methods Provided by a Statute or Rule

Any method of authentication or identification allowed by a rule of the Supreme Judicial Court, by statute, or by the Massachusetts Constitution. 

(11) Electronic or Digital Communication

For electronic or digital communications, 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.

Note

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 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).

Extrinsic evidence of authenticity, as a condition precedent to admissibility, is not required with respect to the following:

(a) Court Records Under Seal

The records and judicial 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.

(b) Domestic Official Records Not Under Seal

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 that officer’s 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, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, any such copy shall be accompanied by a certificate that such custodial officer has custody of the record. 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 the office.

(c) Foreign Official Records

A foreign official record, or an entry therein, when admissible for any purpose, 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 (1) of the attesting person or (2) 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, (1) admit an attested copy without final certification or (2) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(d) Certified Copies of Public Records

Copies of public records, of records described in Sections 5, 7, and 16 of G. L. c. 66, and of records of banks, trust companies, insurance companies, and hospitals, whether or not such records or copies are made by the photographic or microphotographic process if there is annexed to such copies an affidavit, taken before a clerk of a court of record or notary public, under the seal of such court 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 so far as it relates to the subject matter therein mentioned.

(e) Official Publications

(1) Printed copies of all statutes, acts, and resolves of the Commonwealth, public or private, which are published under its authority, and copies of the ordinances of a city, the bylaws of a town, or the rules and regulations of a board of aldermen, if attested by the clerk of such city or town.

(2) Printed copies of rules and regulations purporting to be issued by authority of any department, commission, board, or officer of the Commonwealth or of any city or town having authority to adopt them, or printed copies of any city ordinances or town bylaws or printed copies of the United States Code Annotated or the United States Code Service and all Federal regulations, without certification or attestation; provided, however, that if their genuineness is questioned, the court shall require such certification or attestation thereof as it deems necessary.

(3) Copies of books, papers, documents, and records in any department of the Commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same; provided that the genuineness of the signature of such officer shall be attested by the Secretary of the Commonwealth under its seal or by the clerk of such city or town except in the case of books, papers, documents, and records of the Department of Telecommunications and Energy in matters relating to common carriers, and of the Registry of Motor Vehicles.

(4) The Massachusetts Register.

(f) Certain Newspapers

Certified copies of any newspaper, or part thereof, made by the photographic or microphotographic process deposited in any public library or a library of any college or university located in the Commonwealth.

(g) Trade Inscriptions

A trademark or trade name affixed on a product indicating origin.

(h) Acknowledged Documents

All oaths and affidavits administered or taken by a notary public, duly commissioned and qualified by authority of any other State or government, within the jurisdiction for which the notary is commissioned, and certified under an official seal; such documents shall be as effectual in this Commonwealth as if administered or taken and certified by a justice of the peace therein.

(i) Commercial Paper and Related Documents

Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(j) Presumptions Created by Law

A signature, document, or anything else that a law of the United States or this Commonwealth declares to be presumptively or prima facie genuine or authentic.

(k) Certified Copies of Hospital and Other Records of Treatment and Medical History

Records or copies of records kept by any hospital, dispensary or clinic, or sanitarium, if certified by affidavit by the person in custody thereof to be true and complete.

(l) Copies of Hospital and Other Records of Itemized Bills and Reports

Itemized bills and reports, including hospital medical records and examination reports, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to a person injured, if (1) it is subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization, pharmacist, or retailer of orthopedic appliances rendering such services; (2) the party offering the evidence gives the opposing party written notice of the intention to offer the evidence, along with a copy of the evidence, by mailing it by certified mail, return receipt requested, not less than ten days before the introduction of the evidence; and (3) the party offering the evidence files an affidavit of such notice and the return receipt is filed with the clerk of the court after said receipt has been returned.

(m) Copies of Bills for Genetic Marker Tests and for Prenatal and Postnatal Care

Copies of bills for genetic marker tests and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, shall be admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.

(n) Results of Genetic Marker Tests

In an action to establish the paternity of a child born out of wedlock, the report of the results of genetic marker tests, including a statistical probability of the putative father’s paternity based upon such tests, unless a party objects in writing to the test results upon notice of the hearing date or within thirty days prior to the hearing, whichever is shorter.

Note

Subsection (a). This subsection is derived from G. L. c. 233, § 69. See also Mass. R. Crim. P. 39(a). An out-of-State court record can be authenticated and is admissible either through “double certification” of attestation by the custodian of the record and certification that the custodial officer is in fact the custodian, see Mass. R. Crim. P. 40(a)(1), or by the attestation of the clerk or other officer who has charge of the court records under seal, see Mass. R. Crim. P. 39(a). Commonwealth v. Babcock, 100 Mass. App. Ct. 527, 528–531 (2021) (records of New Hampshire conviction for operating under influence of alcohol properly admitted to prove subsequent offense element for charge of operating under influence of alcohol, second offense).

Subsection (b). This subsection is derived from Mass. R. Civ. P. 44(a)(1) and Mass. R. Crim. P. 40(a)(1). See Commonwealth v. Guardado, 491 Mass. 666, 697 (Lowy, J., concurring), S.C., 493 Mass. 1 (2023) (discussing use of firearms licensing records to prove defendant’s lack of license).

Subsection (c). This subsection is derived from Mass. R. Civ. P. 44(a)(2) and Mass. R. Crim. P. 40(a)(2).

Subsection (d). This subsection is derived from G. L. c. 233, §§ 77 and 79A.

Subsection (e)(1). This subsection is derived from G. L. c. 233, § 75.

Subsection (e)(2). This subsection is derived from G. L. c. 233, § 75.

Subsection (e)(3). This subsection is derived from G. L. c. 233, § 76.

Subsection (e)(4). This subsection is derived from G. L. c. 30A, § 6 (“The publication in the Massachusetts Register of a document creates a rebuttable presumption [1] that it was duly issued, prescribed, or promulgated; [2] that all the requirements of this chapter and regulations prescribed under it relative to the document have been complied with; and [3] that the text of the regulations as published in the Massachusetts Register is a true copy of the attested regulation as filed by the agency.”).

Subsection (f). This subsection is derived from G. L. c. 233, § 79D (“Copies of any newspaper, or part thereof made by photographic or microphotographic process deposited in any public library or a library of any college or university located in the commonwealth, shall, when duly certified by the person in charge thereof, be admitted in evidence equally with the originals.”). See also Section 901(b)(1), Authenticating or Identifying Evidence: Examples: Testimony of a Witness with Knowledge.  

Subsection (g). This subsection is derived from Smith v. Ariens Co., 375 Mass. 620, 621–623 (1978), and Doyle v. Continental Baking Co., 262 Mass. 516, 519 (1928). In Smith, 375 Mass. at 623, the presence of the defendant’s name on the decal on a snowmobile was sufficient to identify the defendant as the manufacturer of the snowmobile. In Doyle, 262 Mass. at 519, the label on which the defendant’s name appeared was sufficient to identify the defendant as the manufacturer of the defective bread. See also G. L. c. 156B, § 11(a) (a corporation is not permitted to use the corporate name or trademark of another corporation registered or doing business in this Commonwealth without their consent).

“Several rationales underlie the acceptance of this rule. First, since trademarks and trade names are protected under statutes, the probability that a particular name will be used by another corporation is very low. Second, since the probability is very high that the corporation whose name appears on a product is the corporation which manufactured the product, judicial efficiency will be served by allowing the identity of the name on a product and the defendant’s name to satisfy the plaintiff’s burden of identifying the defendant as the manufacturer. Finally, the presence of trademarks or trade names on products is accepted and relied on in daily life as sufficient proof of the manufacturer of the product. This common acceptance, which has been reinforced by manufacturers’ advertising, indicates that the identity of a corporation’s name and the name on a product should be sufficient to identify that corporation as the manufacturer.” (Citations omitted.)

Smith, 375 Mass. at 622.

Subsection (h). This subsection is derived from G. L. c. 233, § 73. See also Mass. R. Civ. P. 43(d).

Subsection (i). This subsection is derived from various statutes and commercial law. See, e.g., G. L. c. 106, § 1-202 (document authorized or required by a contract to be issued by a third party is prima facie evidence of its own authenticity); G. L. c. 233, § 76A (records of the Securities and Exchange Commission must be attested by an officer or person who has charge of the same and under a certificate of a member); G. L. c. 233, § 76B (printed copies of rate schedules filed with the Interstate Commerce Commission are admissible without certification); G. L. c. 233, § 77 (copies from the records, books, and accounts of banks and trust companies doing business in the Commonwealth must have an affidavit taken before a notary stating that the officer has charge of the original records); G. L. c. 233, § 78 (business records shall be admissible if the court finds the record was made in good faith, in the regular course of business, before the beginning of legal proceedings, and the person who made the entry has personal knowledge of the facts stated in the record).

Subsection (j). This subsection is derived from statutes which deal with authentication not covered in other areas of Article IX, Authentication and Identification. See, e.g., G. L. c. 9, § 11 (Great Seal); G. L. c. 111, § 195 (certified copy of reports of State laboratory for lead and lead poisoning); G. L. c. 209C, § 17 (in an action to establish paternity of a child born out of wedlock, the report of the results of genetic marker tests shall be admissible without proof of authenticity); G. L. c. 233, § 79B (published statements of fact of general interest to persons engaged in an occupation shall be admissible in the court’s discretion in civil cases); G. L. c. 233, § 79C (published facts or opinions on a subject of science or art shall be admissible in actions of contract or malpractice, conditioned on the court finding that said statements are relevant and that the writer is recognized in the relevant profession as an expert on the subject); G. L. c. 233, § 80 (stenographic transcripts).

Subsection (k). This subsection is derived from G. L. c. 233, § 79. “[Section 79] was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books” (citation omitted). Bouchie v. Murray, 376 Mass. 524, 527 (1978).

Cross-Reference: Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records.  

Subsection (l). This subsection is derived from G. L. c. 233, § 79G. Under Section 79G, in addition to those already noted are “chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.” This subsection applies to both civil and criminal cases. See Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 797–‌800 (2001).

Cross-Reference: Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.

Subsection (m). This subsection is taken verbatim from G. L. c. 209C, § 16(f).

Subsection (n). This subsection is derived from G. L. c. 209C, § 17. Such reports shall not be admissible absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception and shall not be considered as evidence of the occurrence of intercourse between the mother and the putative father. Id. There is nothing in the statute that requires the test to be court-ordered in order to be admissible. Department of Revenue v. Sorrentino, 408 Mass. 340, 344 (1990).

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

Note

This section is derived from G. L. c. 233, § 68, and Mass. R. Civ. P. 8(b) (“The signature to an instrument set forth in any pleading shall be taken as admitted unless a party specifically denies its genuineness.”).

Authentication of wills in uncontested proceedings is governed by the Massachusetts Uniform Probate Code, G. L. c. 190B. Authentication of a will in a contested proceeding requires a greater level of support. See Goodwin v. Riordan, 333 Mass. 317, 318–319 (1955); Werber v. Werber, 62 Mass. App. Ct. 927, 927–928 (2004).