ARTICLE
IX.



AUTHENTICATION
AND IDENTIFICATION



 



Rule 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 rule:



(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 the 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.  Telephone
conversations, 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 call was
made to a place of business and 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 office, 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 or data compilation.  Evidence
that a document or data compilation, in any form, (A) is in such condition as
to create no suspicion concerning its authenticity, (B) was in a place where
it, if authentic, would likely be, and (C) has been in existence twenty years
or more at the time it is 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 statute or by other rules
prescribed by the supreme court. [L 1980, c 164, pt of §1]



 



RULE 901 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 901, except
for the substitution, in subsection (b)(10), of the words, "statute or by
other rules prescribed by the supreme court," for the federal rule
language, "Act of Congress or by other rules prescribed by the Supreme
Court pursuant to statutory authority."  As the Advisory Committee's Note
to Fed. R. Evid. 901 points out:  "Authentication and identification
represent a special aspect of relevancy....  Thus a telephone conversation may be
irrelevant because of an unrelated topic or because the speaker is not
identified.  The latter aspect is the one here involved."  The note also
makes clear that Rule 901's requirement "falls in the category of
relevancy dependent upon fulfillment of a condition of act and is governed by
the procedure set forth in Rule 104(b)."



  Subsection (a):  Although the general provision speaks of a
"matter in question" and the above example is a telephone
conversation, the requirement of authentication is addressed principally to
real evidence, that is, tangible objects and things offered in proof. 
McCormick asserts:  "[W]hen real evidence is offered an adequate
foundation for admission will require testimony first that the object offered
is the object which was involved in the incident [being litigated]." 
Simply stated, the authentication requirement forces the proponent to prove,
usually by means of extrinsic evidence, that an object is the very thing it
purports to be.  Exceptions to the requirement of extrinsic evidence are
collected in Rule 902 infra.



  The requirements of authentication may vary according to the
type of evidence offered and the purposes for which it is offered. 
Authentication may require not only proof of identity but also evidence that
the item remains unaltered, McCormick §212.  This second requirement may
require proof of an unbroken "chain of custody," see State v. Vance,
61 H. 291, 303, 602 P.2d 933, 942 (1979) (drugs and chemicals require chain of
custody up to the point of laboratory testing); compare State v. Olivera, 57 H.
339, 344, 555 P.2d 1199, 1202 (1976) (positive identification of inked
fingerprint card obviated need for chain of custody).



  A different kind of authentication problem arises with
respect to photographs, maps, charts, sketches, models, duplicates, or
replicas.  Authentication for evidence of this kind usually does not address
itself to the issue of the identity or source of the item itself but rather to
its representational authenticity, requiring foundation testimony or other proof
that it is a substantially accurate representation of the thing being
depicted.  McCormick §213.  "On the other hand," continues McCormick,
"if there is an absence of testimony that the object to be illustrated
ever existed the introduction of a 'duplicate' may foster a mistaken impression
of certainty and thus merit exclusion."  For this proposition McCormick
cites the case of Young v. Price, 50 H. 430, 442 P.2d 67 (1968), which ruled
out the replica not because of an "absence of testimony" but because
of a substantial question, based on conflicting testimony, about the existence
of the original object.



  The requirement of authentication applies to documents and
writings, see Fed. R. Evid. 901(a), Advisory Committee's Note:  "Today,
such available procedures as requests to admit and pretrial conference afford
the means of eliminating much of the need for authentication or
identification....  However, the need for suitable methods of proof still
remains, since criminal cases pose their own obstacles to the use of
preliminary procedures, unforeseen contingencies may arise, and cases of
genuine controversy will still occur."



  Subsection (b):  The examples incorporated in this subsection
derive largely from traditional common law forms of authentication, and are
illustrative rather than exclusive.  Because the common law has evolved few
special-category rules for authentication of chattels, see 7 Wigmore, Evidence
§2086 (3d ed. 1942), these examples apply most frequently to authentication of
documents, writings, data compilations, and voice communications; however, they
may be applicable to other forms of evidence as well.



  It should be noted that compliance with the threshold
requirement of authentication does not provide an automatic assurance of the
admissibility of evidence.  A number of other bars, such as hearsay, privilege,
or danger of prejudice or confusion, may exclude it.



  Subsection (b)(1):  The most direct method of authentication
of evidence is by testimony of a witness who has some basis extrinsic to the
item itself for asserting its authenticity.  The foundation requirement for
this mode of authentication is proof of the basis for the witness' knowledge. 
The Advisory Committee's Note to Fed. R. Evid. 901(b)(1) points out that this
example "contemplates a broad spectrum ranging from testimony of a witness
who was present at the signing of a document to testimony establishing
narcotics as taken from an accused and accounting for custody...." 
Regarding the custody requirement, see State v. Vance, 61 H. 291, 303, 602 P.2d
933, 942 (1979).  In Territory v. Hays, 43 H. 58, 65-66 (1958), the court held
that a photograph can be authenticated by a witness other than the
photographer, upon testimony that "the witness is familiar with the scene and...that
the photograph correctly represents the scene."



  Subsection (b)(2):  This example, according to the Advisory
Committee's Note to Fed. R. Evid. 901(b)(2), "states conventional doctrine
as to lay identification of handwriting."  See Goo Kim Fook v. Hee Fat, 27
H. 491, 501 (1923); Territory v. Fong Yee, 25 H. 309 (1920).



  Subsection (b)(3):  This example supersedes a statute, Hawaii
Rev. Stat. §622-2 (1976) (repealed 1980) (originally enacted as L 1876, c 32,
§63; am L 1972, c 104, §2(b)), which required that the exemplars be
"proved to be genuine to the satisfaction of the court."  The
Advisory Committee's Note to Fed. R. Evid. 901(b)(3), discussing statutes of
this sort, says:  "While explainable as a measure of prudence...in the
handwriting situation, the reservation to the judge of the question of the
genuineness of exemplars and the imposition of an unusually high standard of
persuasion are at variance with the general treatment of relevancy which
depends upon fulfillment of a condition of fact.  Rule 104(b).  No similar
attitude is found in other comparison situation, e.g., ballistics comparison by
jury...and no reason appears for its continued existence in handwriting cases. 
Consequently example (3)...treats all comparison situations alike, to be governed
by Rule 104(b)."



  Subsection (b)(4):  "The characteristics of the offered
item itself, considered in the light of circumstances, afford authentication
techniques in great variety," suggests the Advisory Committee's Note to
Fed. R. Evid. 901(b)(4).  See Territory v. Witt, 27 H. 177 (1923), where, in a
case of receiving stolen goods, the court admitted into evidence 15 tires found
in the possession of the defendant or in the possession of persons who had
recently purchased them from the defendant.  In the absence of direct proof
that they were the tires stolen, the court admitted them on the basis of
distinctive characteristics:  they were identical in number, size, and make to
those stolen from a warehouse, and tires of that size and make were unobtainable
at that time from Honolulu dealers.



  Subsection (b)(5):  See the Advisory Committee's Note to Fed.
R. Evid. 901(b)(5):  "Since aural voice identification is not a subject of
expert testimony, the requisite familiarity may be acquired either before or
after the particular speaking which is the subject of the identification, in
this respect resembling visual identification of a person rather than
identification of handwriting."  See State v. Clyde, 47 H. 345, 388 P.2d
846 (1964), in which the court ruled that admission of a telephone conversation
on the basis of voice identification alone was proper if the witness was
acquainted with the voice.



  Subsection (b)(6):  As the Advisory Committee's Note to Fed.
R. Evid. 901(b)(6) suggests, "The cases are in agreement that a mere
assertion of his identity by a person talking on the telephone is not
sufficient evidence of the authenticity of the conversation and that additional
evidence of his identity is required.  The additional evidence need not fall in
any set pattern.  Thus the content of his statements or the reply technique,
under subsection (b)(4) supra, or voice identification under subsection (b)(5),
may furnish the necessary foundation."  The foundation for outgoing calls
is treated in subparagraphs (A) and (B).



  Subsection (b)(7):  The Advisory Committee's Note to Fed. R.
Evid. 901(b)(7) points out that "[p]ublic records are regularly
authenticated by proof of custody, without more."  See In re Title of Pa
Pelekane, 21 H. 175 (1912).



  Subsection (b)(8):  The traditional common law ancient
documents rule is liberalized to include data compilations other than
documents, e.g., computer data, electronically stored data, and microfilms.  In
addition, the common law period of 30 years is reduced to 20 years, consistent
with the trend in a number of other jurisdictions, see 7 Wigmore, Evidence
§2143 (3d ed. 1942).  This represents a change in Hawaii law, see Hulihee v.
Heirs of Hueu, 57 H. 312, 315, 555 P.2d 495, 498 (1976).  Compare the ancient
documents exception to the hearsay rule, Rule 803(b)(16) supra, and the
provision for presumptive authenticity of certain documents, Rule 303(c)(12)
supra.



  Subsection (b)(9):  The Advisory Committee's Note to Fed. R.
Evid. 901(b)(9) points out that this example "is designed for situations
in which the accuracy of a result is dependent upon a process or system which
produces it.  X-rays afford a familiar instance."



  Subsection (b)(10):  A number of statutes and rules of court
provide expressly for methods of authentication or for presumptions of prima
facie authenticity, e.g., HRCP 44.  This rule in no way supersedes such
statutory or procedural rules and methods of authentication.



 



Case Notes



 



  Witnesses' combined testimony provided "enough
foundation" to identify State's exhibit as knife defendant used to stab
victims.  83 H. 335, 926 P.2d 1258.



  No abuse of discretion in receiving exhibit, purported
assignment of lease, into evidence.  77 H. 320 (App.), 884 P.2d 383.



  There was sufficient evidence to authenticate the 911
recording and establish its admissibility where the 911 dispatcher testified
that the dispatcher received the call, the recording equipment was working
properly, the State's exhibit was an accurate recording of the call, and that
the female voice on the call was dispatcher's voice, and victims testified that
they made the call, described certain statements they made during the call, and
that recording accurately reflected what happened after victims made the 911
call.  106 H. 517 (App.), 107 P.3d 1190.



  Evidence admitted under rule 106 is subject to the
authentication requirement under this rule.  108 H. 89 (App.), 117 P.3d 821.



  Trial court did not abuse its discretion by requiring
defendant to produce testimony from physician or physician's custodian of
records that physician's report was in fact made by physician and by refusing
to admit physician's report for lack of authentication required under this rule
where witness' testimony did not authenticate report, there was a lack of
evidence attesting to physician's signature on the report, and lack of
testimony about any distinctive characteristics of the report.  108 H. 89
(App.), 117 P.3d 821.



  Where exhibit was not authenticated by a citation to a
verified source, and without this certification, the document was hearsay and
did not fall under any hearsay exception, by applying rules 801, 902 and this
rule, the exhibit was inadmissible and could not be considered by the trial
court.  114 H. 56 (App.), 156 P.3d 482.