A Foundation For Admitting Documents: Authentication And Relevance

Excluding from evidence a copy of a foreign judgment of conviction of the defendant because its proponent failed to establish adequate authentication for the document; the document failed to conform to the requirements of Fed. R. Civ. Proc 44(a) that an authenticated record be: (1) signed or otherwise attested to by a person who was authorized to take such action, and (2) additionally include a final certification that the signature in (1), complies with the requirements of rules or treaty, as to a proper subscribing officer, in Starski v. Kirzhnev, 682 F.3d 51 (1st Cir. June 20, 2012) (No. 11–1393)

There is a big difference between resolving whether a document sought to be admitted is what its proponent claims it is and resolving whether there is anything in the document that is true or false. The first issue is one of authentication, as treated by FRE 901 and FRE 902. The second issue must also be addressed before is also necessary for admission of a document, but is not really an authentication matter. This second requirement is one of relevance under FRE 401 and FRE 403. It concerns the examination of whether the statements in the authenticated document are true or false. The First Circuit recently considered a diversity contract case that illustrates this process. One issue that the circuit focused on was whether the losing party, the plaintiff, should have been able to place into evidence a document indicating the defendant had been convicted of forgery in Russia, as impeachment evidence.

In the case, Plaintiff Starski sued defendant Kirzhnev and his company DAI alleging that Kirzhnev violated a contract with the plaintiff. Under the alleged contract, the plaintiff would have received a percentage payments received by the defendant for facilitating a $1.5 billion debt swap deal. The debt swap went through but the plaintiff never got paid and he brought a diversity contract suit for breach of contract. The case went to trial and the jury returned a verdict for the defendant, finding that no contract had been formed and accordingly there were no damages incurred. Starski, 682 F.3d at 52.

The plaintiff appealed. One ground for the appeal involved his claim the trial judge improperly "preclud[ed] him from impeaching" [defendant] Kirzhnev through evidence of Kirzhnev's conviction for bribery and forgery in Russia. This was "central" to resolving the case he contended. Although the plaintiff offered documentary evidence that a contract had been made, the defendant's theory was that the document (or at least his signature on it) was a forgery. Accordingly, evidence of the defendant's credibility "was certainly material" to deciding the case. Starski, 682 F.3d at 53.

The plaintiff tried to attack the defendant's testimony by introducing evidence of his conviction within the prior ten years of a crime. Such impeachment evidence was admissible as long as the underlying crime involved a "dishonest act or false statement." The plaintiff contended that the conviction record he submitted into evidence, reflecting that the defendant had been convicted for bribery and forgery was just such impeachment evidence. Starski, 682 F.3d at 52 n.1.

This type of crime would not be subject to the FRE 403 balance of probative value with unfair prejudice. Rather, FRE 609(a)(2) provided that the evidence "must be admitted" for impeachment purposes, regardless of any undue prejudice that might result. Starski, 682 F.3d at 53(citing United States v. Tracy, 36 F.3d 187, 192 (1st Cir. 1994)). According to the circuit:

... absent testimony (e.g., from a court official), a foreign document is self-authenticating if [it is] (1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification--either by certain officials enumerated in the rules or pursuant to treaty--of the genuineness of the signature and official position of the signer or attester. Fed. R. Evid. 902(3); see also Fed. R. Civ. P. 44(a)(2). Here, Starski tendered no such certification.

At trial plaintiff filed a motion in limine that the court admit into evidence, apparently in lieu of the authentication, a

purported English translation of a Russian document that he said was evidence of Kirzhnev's convictions. The English version had a heading stating “Enquiry” and said: “This is to confirm that Kirzhnev Alexander ... was convicted by Moscow City Court and sentenced to 4 years and 6 months ... under articles: 291, part 1 (bribing government official) 322, part 1 (illegal sovereign border crossing) 327, part 1 and 3 (forgery of documents and knowingly using forged documents).”
______________________________

It was signed by “Secretary of the court: Panova E.V.”
Starski, 682 F.3d at 52 n.1.


While the district court did not initially reject this evidence, the court eventually concluded that the document was inadmissible. One reason was purely "technical" -- the court found that the document was not sufficiently authenticated under FRE 901 or FRE 902. The court also offered reasons of relevance as to why, even had the document been properly authenticated, it could not be admitted into evidence. The court harbored doubts about the "integrity" of the Russian criminal justice process regarding forgeries, the supposed-crime for which the defendant had been convicted. The court essentially required information about what the conviction meant in the Russian legal system -- did the document actually record evidence findings on any conduct that could discredit the defendant's creditability?

The circuit affirmed the trial court's exclusion of defendant's purported Russian conviction record. The circuit used a two-part inquiry. First, the circuit noted that there was a complete failure of certification of the document, and therefore it could not to admitted. "[T]he authentication requirements are set forth in the Federal Rules of Evidence," noted the circuit and the requirements were so clear that "it is not the court's job to remind counsel of the need to comply with them." Starski, 682 F.3d at 53.

The circuit noted that authentication would involve testimony from a court official as to the source of the record. But in the alternative, the document could be self-authenticating under FRE 902(3). But as explained above, while the rule requires the document be certified, the plaintiff "tendered no such certification." Starski, 682 F.3d at 53.

Nor could the plaintiff take advantage of FRE 902's savings clause, which relaxed the "the authentication requirements. A prerequisite for use of this provision is that the party requesting authentication must show that it was “unable to satisfy” the rule's requirements for authentication “despite ... reasonable efforts.” United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991) (quoting Fed.R.Civ.P. 44 advisory committee note). The circuit noted that the plaintiff had been able to properly authenticate other documents involved in the contract litigation. It appeared that as to whether he had made an attempt to show he made “reasonable efforts” with regard to the conviction evidence, that the plaintiff had failed to "develop that claim on appeal." Starski, 682 F.3d at 53.

The plaintiff's failure to authenticate was manifest. According to the circuit:

...the document showing a conviction must be authenticated, and absent testimony (e.g., from a court official), a foreign document is self-authenticating if (1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification--either by certain officials enumerated in the rules or pursuant to treaty--of the genuineness of the signature and official position of the signer or attester. Fed. R. Evid. 902(3); see also Fed. R. Civ. P. 44(a)(2). Here, Starski tendered no such certification.
______________________________

Starski, 682 F.3d at 53.

The whole controversy, noted the circuit, "has an opéra-bouffe air of unreality" because the defendant "never denied to the court that he had been convicted ..., although the jury was not told of the fact. Conversely, the jury likely fathomed just what [defendant] Kirzhnev was doing to earn his own commission, whether or not he was formally convicted of bribery; whether or not the jury drew a negative inference from the conduct is unclear but, if not, it is unclear that a formal conviction would alter its view." In this sense, the circuit seemed to be suggesting that even had the court erred in excluding the evidence, it would be deemed harmless.

______________________________

Federal Rules of Evidence
PDF