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Thoughts on Melendez-Diaz: Certificates of Authenticity

By Richard D. Friedman

At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones?s birth certificate (to use Justice Breyer?s example), or information contained in it. The birth certificate itself is not a testimonial statement. But the copy was produced for the particular prosecution, and is accompanied by a certificate of authenticity. Does the Confrontation Clause require the prosecution to present the custodian of records to authenticate the certificate?

I think the answer is no, and this case is clearly distinguishable from Melendez-Diaz, on several grounds.

(1) The certificate of authenticity is probably not testimonial. True, the prosecution agent who procured the copy of the birth certificate and the accompanying certificate of authenticity knew, by hypothesis, that they were to be used in a prosecution. But it is the anticipation of the declarant ? in this case, the one who made the certificate of authenticity ? that should count in determining whether a statement is testimonial, not the intended use by the one who procures the statement. (This is an argument I have made many times before, on this blog and in other writing.) Records clerks make many assertions that documents are authentic, and most of those are not anticipated for litigation use. Presumably the prosecution agent in a given case does not say to the records clerk, ?Please give me a copy of Joe Jones?s birth certificate, with a certificate of authenticity, so that I can use it in a prosecution.? But even if the agent does add those gratuitous words at the end, or if they seem implicit in the request given the source, the certificate of authenticity is the same type of statement that the clerk routinely makes in non-litigation contexts, and presumably the same type of statement the clerk would make about this certificate even if she did not know about the intended use.

The report in Melendez-Diaz stands in sharp contrast to a certificate of authenticity, of course; it was clearly prepared for prosecution use. Similarly, a certificate showing that there is no record of permission given to a particular alien to re-enter the country after deportation should be considered testimonial; such certificates are presumably prepared only for purposes of assisting in prosecutions for re-entry without permission after deportation. (But I think Congress could easily eliminate that problem. I assume that very few deported aliens are given permission to re-enter; the statute could be reframed so that the crime is re-entry after deportation, and permission to re-enter is an affirmative defense. Poof!)

(2) The certificate of authenticity resembles the old official seal; indeed, it is likely to come in the form of a seal directly affixed to the underlying birth certificate, rather than in a separate document. Certain documents under seal have long (since well before adoption of the Sixth Amendment) been admissible. I believe that understanding the historical use of the seal is a fertile area for academic research. One view might be that the seal is not so much an assertion as an official act that effectively makes the copy the equivalent of the original. It may also be that the seal can only be used when, in accordance with the reasoning in point (1) above, it should not be considered testimonial in nature. In any event, the impact of the seal is limited to demonstrating that a given document is an accurate copy of an original official document. That would do the prosecution no good at all in a case like Melendez-Diaz.

(3) Finally, so far as the Confrontation Clause or any other part of the Constitution is concerned, there is no need for the prosecution to present any authenticating evidence at all. If a piece of evidence appears on its face ? without the aid of testimonial statements ? to be what the proponent claims it to be, then without any additional evidence about it the jury could infer that this is what it is. If a piece of paper says it is Joe Jones?s birth certificate, then the jury does not, as a logical or constitutional matter, need more evidence to prove that it is indeed Joe Jones?s birth certificate. (Note how a certificate of a lab report is different in this respect ? the only way we know what that is from the face of it is by virtue of the fact that it says it is a particular lab report, and that statement was made for prosecutorial purposes.)

There is nothing unusual about this idea. Fed. R. Evid. 902 contains a long list of categories of self-authenticating evidence ? that is, evidentiary items that do not need ?[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.? Some of these, including government records, require certifications of authenticity; in other words, though the proponent does not need to present admissible evidence supporting the authenticity, the document does have th be accompanied by some sort of certification that it is authentic. But others are truly self-authenticating ? if the thing appears to be what its proponent claims, then nothing more is needed to satisfy an authentication requirement. These include the following:

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

There is no reason that a jurisdiction could not add to this list papers purporting ? without reliance on testimonial statements ? to be within certain categories of official records.

If a jurisdiction does adopt this approach, and the prosecution does not present supporting evidence to demonstrate that the document is the birth certificate it purports to be, it is, of course, open to the defense to challenge the authenticity of the document. And if the state does choose to present supporting evidence, that would have to be in admissible form.

In sum, holding for Melendez-Diaz would not commit the Supreme Court to holding that a certificate of authenticity can never be admitted unless the author of the certificate testifies subject to confrontation. The Court need not reach that issue at all in Melendez-Diaz.

Full post as published by The Confrontation Blog on December 24, 2008 (boomark / email).