Thursday, November 21, 2013
We Come From France: What's the Intersection Between Self-Authentication & The Rule Against Hearsay?
Federal Rule of Evidence 902(7) provides that "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. That said, couldn't a sign, tag, or label be hearsay -- a person’s oral assertion, written assertion, or nonverbal conduct offered to prove the matter asserted -- making it inadmissble under Federal Rule of Evidence 802 in the absence of an exception or exclusion? This was the question that I was discussing with my colleague Derek Black yesterday. The answer, or at least the one provided by a handful of courts, can be found in United States v. Alvarez, 960 F.2d 830 (9th Cir. 1992).In Alvarez, the defendant was convicted of being a felon in possession of a firearm and being an armed career criminal. After he was convicted, the defendant appealed, prompting the Ninth Circuit to engage in the following discussion of the intersection between Rule 902(7) and the rule against hearsay:
The firearm possessed by Appellant was inscribed with the words “Garnika, Spain.” Appellant argues that it was error to admit the firearm into evidence and to permit the government to argue that the inscription indicated where the gun was manufactured, because the inscription constitutes hearsay.
In United States v. Snow, 517 F.2d 441 (9th Cir.1975), we held that a red tape imprinted with the defendant's name and affixed to a briefcase in which a gun was found was not hearsay, as the inscription did not constitute an assertion “from which the truth of the matter asserted is desired to be inferred,”...but rather was a “mechanical trace” and a type of circumstantial evidence not excludable under the hearsay rule....For the same reason, we believe that a similar inscription on the firearm itself does not constitute hearsay. An inscription placed on a firearm by the manufacturer is similarly a mechanical trace and not a statement for purposes of Federal Rule of Evidence 801(c).
Further, the Federal Rules of Evidence do not require extrinsic evidence of authenticity for inscriptions, signs, tags or labels which indicate workmanship, control or origin. Fed.R.Evid. 902(7). Thus, evidence consisting of a manufacturer's inscription on a firearm is not an assertion subject to the hearsay rule. The district court did not abuse its discretion in admitting the firearm over Appellant's hearsay objection and in allowing the government to argue that the inscription on the gun indicated that it had been manufactured in Spain.
Since then, at least a few other courts have followed the Ninth Circuit's lead. For instance, in United States v. Brown, 2009 WL 2090193 (S.D. Ind. 2009), the defendant's hard drive stated "Product of Malaysia, prompting the following discussion:
There are two steps to the analysis: authenticity and hearsay. The authenticity step is easy. Rule 902(7) provides that such trade inscriptions are self-authenticating. The hearsay question is more involved. The inscription might be considered at first to be an out-of-court “statement” about the origin of the product that would fall within the scope of hearsay as defined in Rule 801. The government points out that in United States v. Snow,...the Ninth Circuit adopted the concept of a “mechanical trace” described by Professor Wigmore in his treatise on evidence....In Snow the court held that the district court had properly allowed admission of a briefcase in which an unregistered firearm was found. The case had a red tape on it with the lettering of a business name and the defendant's name. The Ninth Circuit held that the district court had properly overruled a hearsay objection to the contents of the tape on the case because the tape was merely circumstantial evidence of ownership and did not amount to a testimonial statement of ownership. The Ninth Circuit later applied this reasoning to a trade inscription on a firearm, stating that it was made in Spain, in United States v. Alvarez....This reasoning appears to this court to be sound. The inscription is simply part of the physical evidence in the case, and it would make little sense to suggest that it should be “redacted” in some way. The inscription of origin is required by law and should be highly reliable. (If there were an issue about the reliability of such an inscription of origin in a specific case, of course, additional evidence on the point could be offered.)