District Court Did Not Abuse Discretion by Admitting Documents as “Self-Authenticating,” Despite Government’s Failure to Comply With Rule 902

Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; “they require no extrinsic evidence of authenticity in order to be admitted.” Fed. R. Evid. 902. These items include certified domestic records. But the rule requires the proponent of the evidence to give an adverse party, before trial, “reasonable written notice of the intent to offer the record — and [to] make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.” Fed. R. Evid. 902(11).

In this case, a prosecution for mortgage fraud, the district court admitted the pertinent loan files as self-authenticating under Rule 902(11), even though the government never gave the defendants the “written notice” required by the Rule.

The Circuit nevertheless found no error. The Court noted that the defendants admitted that they had oral notice of the government’s intent to offer the records and an opportunity to challenge the Rule 902(11) evidence.

The Court concluded its opinion by warning that “parties fail to comply with … Rule 902(11)’s written notice requirements at their own risk.” But, given the Court’s readiness to overlook the government’s failure to comply with the Rule — which the government easily could have done — that warning is likely to ring hollow.

Commentary: It’s hard to see how the failure to comply with the plain language of a rule of evidence isn’t error. The Circuit would have been on stronger ground if it acknowledged the error, and then evaluated whether the error was harmless.