Mass. R. Evid. 902

As amended through October 3, 2024

Section 902 - Evidence That Is Self-Authenticating

Extrinsic evidence of authenticity, as a condition precedent to admissibility, is not required with respect to the following:

(a)Court Records Under Seal. The records and judicial proceedings of a court of another State or of the United States, if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal.

(b)Domestic Official Records Not Under Seal. An official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by that officer's deputy. If the record is kept in any other State, district, Commonwealth, territory, or insular possession of the United States, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, any such copy shall be accompanied by a certificate that such custodial officer has custody of the record. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the office.

(c)Foreign Official Records. A foreign official record, or an entry therein, when admissible for any purpose, attested by a person authorized to make the attestation and accompanied by a final certification as to the genuineness of the signature and official position (1) of the attesting person or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (1) admit an attested copy without final certification or (2) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(d) Certified Copies of Public Records. Copies of public records, of records described in Sections 5, 7, and 16 of G. L. c. 66, and of records of banks, trust companies, insurance companies, and hospitals, whether or not such records or copies are made by the photographic or microphotographic process if there is annexed to such copies an affidavit, taken before a clerk of a court of record or notary public, under the seal of such court or notary, stating that the affiant is the officer having charge of the original records, books, and accounts, and that the copy is correct and is full so far as it relates to the subject matter therein mentioned.

(e)Official Publications.

(1) Printed copies of all statutes, acts, and resolves of the Commonwealth, public or private, which are published under its authority, and copies of the ordinances of a city, the bylaws of a town, or the rules and regulations of a board of aldermen, if attested by the clerk of such city or town.

(2) Printed copies of rules and regulations purporting to be issued by authority of any department, commission, board, or officer of the Commonwealth or of any city or town having authority to adopt them, or printed copies of any city ordinances or town bylaws or printed copies of the United States Code Annotated or the United States Code Service and all Federal regulations, without certification or attestation; provided, however, that if their genuineness is questioned, the court shall require such certification or attestation thereof as it deems necessary.

(3) Copies of books, papers, documents, and records in any department of the Commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same; provided that the genuineness of the signature of such officer shall be attested by the Secretary of the Commonwealth under its seal or by the clerk of such city or town except in the case of books, papers, documents, and records of the Department of Telecommunications and Energy in matters relating to common carriers, and of the Registry of Motor Vehicles.

(4) The Massachusetts Register.

(f)Certain Newspapers. Certified copies of any newspaper, or part thereof, made by the photographic or microphotographic process deposited in any public library or a library of any college or university located in the Commonwealth.

(g)Trade Inscriptions. A trademark or trade name affixed on a product indicating origin.

(h)Acknowledged Documents. All oaths and affidavits administered or taken by a notary public, duly commissioned and qualified by authority of any other State or government, within the jurisdiction for which the notary is commissioned, and certified under an official seal; such documents shall be as effectual in this Commonwealth as if administered or taken and certified by a justice of the peace therein.

(i) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(j)Presumptions Created by Law. A signature, document, or anything else that a law of the United States or this Commonwealth declares to be presumptively or prima facie genuine or authentic.

(k)Certified Copies of Hospital and Other Records of Treatment and Medical History. Records or copies of records kept by any hospital, dispensary or clinic, or sanitarium, if certified by affidavit by the person in custody thereof to be true and complete.

(l)Copies of Hospital and Other Records of Itemized Bills and Reports. Itemized bills and reports, including hospital medical records and examination reports, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to a person injured, if (1) it is subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization, pharmacist, or retailer of orthopedic appliances rendering such services; (2) the party offering the evidence gives the opposing party written notice of the intention to offer the evidence, along with a copy of the evidence, by mailing it by certified mail, return receipt requested, not less than ten days before the introduction of the evidence; and (3) the party offering the evidence files an affidavit of such notice and the return receipt is filed with the clerk of the court after said receipt has been returned.

(m)Copies of Bills for Genetic Marker Tests and for Prenatal and Postnatal Care. Copies of bills for genetic marker tests and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, shall be admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.

(n)Results of Genetic Marker Tests. In an action to establish the paternity of a child born out of wedlock, the report of the results of genetic marker tests, including a statistical probability of the putative father's paternity based upon such tests, unless a party objects in writing to the test results upon notice of the hearing date or within thirty days prior to the hearing, whichever is shorter.

Mass. Guid. Evid. 902

Subsection (a). This subsection is derived from G. L. c. 233, § 69. See also Mass. R. Crim. P. 39(a). An out-of-State court record can be authenticated and is admissible either through "double certification" of attestation by the custodian of the record and certification that the custodial officer is in fact the custodian, see Mass. R. Crim. P. 40(a)(1), or by the attestation of the clerk or other officer who has charge of the court records under seal, see Mass. R. Crim. P. 39(a). Commonwealth v. Babcock, 100 Mass. App. Ct. 527, 528-531 (2021) (records of New Hampshire conviction for operating under influence of alcohol properly admitted to prove subsequent offense element for charge of operating under influence of alcohol, second offense).

Subsection (b). This subsection is derived from Mass. R. Civ. P. 44(a)(1) and Mass. R. Crim. P. 40(a)(1). See Commonwealth v. Guardado, 491 Mass. 666, 697 (Lowy, J., concurring), S . C ., 493 Mass. 1 (2023) (discussing use of firearms licensing records to prove defendant's lack of license).

Subsection (c). This subsection is derived from Mass. R. Civ. P. 44(a)(2) and Mass. R. Crim. P. 40(a)(2).

Subsection (d). This subsection is derived from G. L. c. 233, §§ 77 and 79A.

Subsection (e)(1). This subsection is derived from G. L. c. 233, § 75.

Subsection (e)(2). This subsection is derived from G. L. c. 233, § 75.

Subsection (e)(3). This subsection is derived from G. L. c. 233, § 76.

Subsection (e)(4). This subsection is derived from G. L. c. 30A, § 6 ("The publication in the Massachusetts Register of a document creates a rebuttable presumption [1] that it was duly issued, prescribed, or promulgated; [2] that all the requirements of this chapter and regulations prescribed under it relative to the document have been complied with; and [3] that the text of the regulations as published in the Massachusetts Register is a true copy of the attested regulation as filed by the agency.").

Subsection (f). This subsection is derived from G. L. c. 233, § 79D ("Copies of any newspaper, or part thereof made by photographic or microphotographic process deposited in any public library or a library of any college or university located in the commonwealth, shall, when duly certified by the person in charge thereof, be admitted in evidence equally with the originals."). See also Section 901(b)(1), Authenticating or Identifying Evidence: Examples: Testimony of a Witness with Knowledge.

Subsection (g). This subsection is derived from Smith v. Ariens Co., 375 Mass. 620, 621-623 (1978), and Doyle v. Continental Baking Co., 262 Mass. 516, 519 (1928). In Smith, 375 Mass. at 623, the presence of the defendant's name on the decal on a snowmobile was sufficient to identify the defendant as the manufacturer of the snowmobile. In Doyle, 262 Mass. at 519, the label on which the defendant's name appeared was sufficient to identify the defendant as the manufacturer of the defective bread. See also G. L. c. 156B, § 11(a) (a corporation is not permitted to use the corporate name or trademark of another corporation registered or doing business in this Commonwealth without their consent).

"Several rationales underlie the acceptance of this rule. First, since trademarks and trade names are protected under statutes, the probability that a particular name will be used by another corporation is very low. Second, since the probability is very high that the corporation whose name appears on a product is the corporation which manufactured the product, judicial efficiency will be served by allowing the identity of the name on a product and the defendant's name to satisfy the plaintiff's burden of identifying the defendant as the manufacturer. Finally, the presence of trademarks or trade names on products is accepted and relied on in daily life as sufficient proof of the manufacturer of the product. This common acceptance, which has been reinforced by manufacturers' advertising, indicates that the identity of a corporation's name and the name on a product should be sufficient to identify that corporation as the manufacturer." (Citations omitted.)

Smith, 375 Mass. at 622.

Subsection (h). This subsection is derived from G. L. c. 233, § 73. See also Mass. R. Civ. P. 43(d).

Subsection (i). This subsection is derived from various statutes and commercial law. See, e.g., G. L. c. 106, § 1-202 (document authorized or required by a contract to be issued by a third party is prima facie evidence of its own authenticity); G. L. c. 233, § 76A (records of the Securities and Exchange Commission must be attested by an officer or person who has charge of the same and under a certificate of a member); G. L. c. 233, § 76B (printed copies of rate schedules filed with the Interstate Commerce Commission are admissible without certification); G. L. c. 233, § 77 (copies from the records, books, and accounts of banks and trust companies doing business in the Commonwealth must have an affidavit taken before a notary stating that the officer has charge of the original records); G. L. c. 233, § 78 (business records shall be admissible if the court finds the record was made in good faith, in the regular course of business, before the beginning of legal proceedings, and the person who made the entry has personal knowledge of the facts stated in the record).

Subsection (j). This subsection is derived from statutes which deal with authentication not covered in other areas of Article IX, Authentication and Identification. See, e.g., G. L. c. 9, § 11 (Great Seal); G. L. c. 111, § 195 (certified copy of reports of State laboratory for lead and lead poisoning); G. L. c. 209C, § 17 (in an action to establish paternity of a child born out of wedlock, the report of the results of genetic marker tests shall be admissible without proof of authenticity); G. L. c. 233, § 79B (published statements of fact of general interest to persons engaged in an occupation shall be admissible in the court's discretion in civil cases); G. L. c. 233, § 79C (published facts or opinions on a subject of science or art shall be admissible in actions of contract or malpractice, conditioned on the court finding that said statements are relevant and that the writer is recognized in the relevant profession as an expert on the subject); G. L. c. 233, § 80 (stenographic transcripts).

Subsection (k). This subsection is derived from G. L. c. 233, § 79. "[Section 79] was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books" (citation omitted). Bouchie v. Murray, 376 Mass. 524, 527 (1978).

Cross-Reference: Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records.

Subsection (l). This subsection is derived from G. L. c. 233, § 79G. Under Section 79G, in addition to those already noted are "chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered." This subsection applies to both civil and criminal cases. See Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 797-800 (2001).

Cross-Reference: Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.

Subsection (m). This subsection is taken verbatim from G. L. c. 209C, § 16(f).

Subsection (n). This subsection is derived from G. L. c. 209C, § 17. Such reports shall not be admissible absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception and shall not be considered as evidence of the occurrence of intercourse between the mother and the putative father. Id. There is nothing in the statute that requires the test to be court ordered in order to be admissible. Department of Revenue v. Sorrentino, 408 Mass. 340, 344 (1990).