Monday, July 2, 2012
An Opéra-Bouffe Air Of Unreality: 1st Circuit Finds "Savings Clause" Of Rule 902(3) Not Satisfied For Russian Convictions
Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(3), one type of self-authenticating evidence is the foreign public document,
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. (emphasis added).
"Because the language of the Rule 902(3) exception (contained in the italicized language) was appropriated directly from Fed.R.Civ.P. 44(a)(2)...., courts are obliged to read the two rules in pari passu." United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991). So, was this exception, the so-called "savings clause" of Rule 902(3), satisfied in Starski v. Kirzhnev, 2012 WL 2334742 (1st Cir. 2012)?
In Kirzhnev, Eugene Starski asserted claims against Alexander Kirzhnev (and Kirzhnev's company DAI Synditrade) growing out of a commercial dispute. After trial, Starski filed a motion for a new trial, claiming that the district court erred by deeming evidence of Kirzhnev's Russian convictions inadequately authenticated.
The district court denied the motion, and the First Circuit agreed, finding that
the document showing a conviction must be authenticated, and absent testimony (e.g., from a court official), a foreign document is self-authenticating if (1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification—either by certain officials enumerated in the rules or pursuant to treaty—of the genuineness of the signature and official position of the signer or attester. Fed.R.Evid. 902(3); see also Fed.R.Civ.P. 44(a)(2)). Here, Starski tendered no such certification.
That still left the "savings clause" of Rule 902(3), with the First Circuit noting that
A savings clause in Rule 902 permits the court to relax the authentication requirements, but one condition is that the party so requesting show that it was "unable to satisfy" the rule's requirements for authentication "despite...reasonable efforts." United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991) (quoting Fed.R.Civ.P. 44 advisory committee note).
But the First Circuit found that this savings clause was not satisfied because
Starski was able to get other documents properly authenticated; and, if he made a “reasonable efforts” proffer below, he does not develop that claim on appeal.
The whole controversy has an opéra-bouffe air of unreality. As Starski points out, Kirzhnev never denied to the court that he had been convicted of bribery, although the jury was not told of the fact. Conversely, the jury likely fathomed just what Kirzhnev was doing to earn his own commission, whether or not he was formally convicted of bribery; whether or not the jury drew a negative inference from the conduct is unclear but, if not, it is unclear that a formal conviction would alter its view.