The Danger of Self Authenticating Documents by Elliott Wilcox

Normally, when you're seeking to introduce items into evidence, you need a live witness to testify and establish your
evidentiary predicates. But some evidence is so trustworthy that it doesn't reuire a witness. !hese forms of
evidence are inherently reliable, and are deemed to be "self#authenticating." Examples of self#authenticating
evidence include$
%tate and federal laws
&ontents of the 'ederal (egister
)aws of foreign nations
*cts of &ongress
&ourt records
(ules of court
+unicipal and county charters
,rdinances and resolutions of municipalities
*dministrative agency rules
-tems under official governmental seal
'acts that are not sub.ect to dispute
!he last item on the list is also the most interesting$ 'acts that are not sub.ect to dispute. !here are two different
sources of indisputable facts. !he first source is facts which aren't sub.ect to dispute because they're generally
known within the territorial .urisdiction of the court. 'or example, in ,rlando, 'lorida, everyone knows that &entral
Blvd. and ,range *ve. intersect in the middle of downtown. /ou wouldn't need a geography expert to establish that
fact ## everyone in the .urisdiction is expected to know it 0even if nobody outside of ,rlando knows that1, so you can
ask the court to take .udicial notice of the fact.
!he second source of indisputable facts are those which are capable of accurate and ready determination by
resorting to sources whose accuracy cannot be uestioned. 'or example, if you were trying to establish which day of
the week *ugust 2, 3456 fell on, your .udge could take .udicial notice that it fell on a 'riday. Why7 Because the fact
isn't sub.ect to dispute ## anyone with access to a calendar can uickly and easily determine its veracity.
!he great benefit of these forms of self#authenticating evidence is that you can introduce the items into evidence
without the time and expense of calling a live witness to the stand. 'or example, a while ago - tried a case where my
opponent was seeking to introduce a medical document. 8e didn't use an expert witness or records custodian to
admit the document. -nstead, he introduced it using our state's version of 'ederal (ule of Evidence 2490:1. -n case
you're unfamiliar with it, '(E 2490:1 establishes another form of evidence that is 0basically1 self#authenticating$
(ecords of (egularly &onducted *ctivity. When the evidence code was amended in 3444, they eased the business
records hearsay exception by no longer reuiring live testimony from a business records custodian. -nstead, they
now allow you to simply certify that the records are kept in the normal course of business.
;sing this evidentiary rule, my opponent didn't need to call a single witness to the stand. -nstead, he simply handed
the document and the certification to the .udge, then asked to have them admitted into evidence. !hat was it<
Without asking a single uestion, he satisfied the entire evidentiary predicate for admitting the document.
!hat was when - noticed the problem with "self#authenticating" documents.
*fter the document was marked into evidence, the attorney asked for permission to publish it to the .ury. !he .udge
granted permission, and the document was handed to the first .uror. !he .uror received the document and uietly
stared at it. -f the document could have spoken, it would have said, "-'m important, because - show that the witness
had alcohol in his bloodstream when he was admitted to the hospital. -n fact, the witness had an alcohol level of .
42=, which is more than the legal limit to drive a car. /ou might want to uestion whether or not this witness
knowingly and voluntarily gave up his right to remain silent before he gave that statement to the police..."
!hat's what the document would have said, if it could speak. But it couldn't. -t .ust sat there while the .uror stared at
it. /ou could tell from the look on his face that he wasn't sure what he was supposed to be looking at. 8e didn't have
any medical training, so medical codes and terms like "mg>dl" probably didn't mean anything to him. 8e was .ust as
confused as he would have been if the document had been written in %anskrit. 8e stared at it for a moment longer,
then passed it to the next .uror. What might have been an important element in the case was completely overlooked,
because the document didn't get a chance to speak.
+any attorneys make the same mistake. !hey believe that if a document is self#authenticating, it should be able to
"speak for itself." But nothing could be further from the truth. ?ocuments don't speak. !hey don't explain
themselves. -f a .uror doesn't know how to read them, or if they don't know which parts of the document are
important, the document .ust sits there and silently stares back at them.
?on't make the same mistake. *s the trial lawyer, it's your responsibility to ensure that the .ury understands your
evidence. Even when your evidence is supposed to "speak for itself," you still must give it a voice. !he most
effective way you can help your self#authenticating evidence "speak" is by strategically publishing the exhibits to the
.ury. -f my opponent had waited until closing argument to publish his exhibit, he could have shown the .urors which
parts of the document to examine closely, and told them why it was important. -nstead, they examined the document
in a vacuum, and had no idea why it was important or why they were looking at it. !he importance of the document
was lost, never to be regained.
?on't fall into the trap of automatically publishing your exhibits immediately after they've been admitted into evidence.
Wait until the most opportune time to publish them. !his may mean that you don't publish your self#authenticating
documents until much later in your case, when a witness can use the document to explain or enhance his testimony.
-t may even mean that you wait all the way until closing argument 0when you can explain the document or highlight
the important elements1 before publishing the documents to the .ury.
%elf#authenticating documents don't speak for themselves. -t's up to you to give them a voice. 'ind a way to work
the document into another witness's testimony, or hold off on publishing the document until closing argument.
(egardless of which method you use, you'll breathe more life into your evidence, making it more persuasive than it
ever could be on its own.