Fordham Law Professor Daniel Capra was quoted in Excited Utterance Evidence and Proof Podcast about his new article published in the Yale Journal of Law and Technology, “Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule.”
Capra’s article covers the Ancient Documents Exception—the subject of a recently proposed rule change to the Federal Rules of Evidence. His article raises some questions about the Ancient Documents Exception and the problems surrounding it.
“The problem that I saw was that the Ancient Documents Exception 803(16) of the Federal Rules of Evidence—that’s one rule. There is a different rule that is the authenticity rule,” Capra said.
“So what the original advisory committee did was essentially equate authenticity. That is to say it’s 20 years old; it’s in a place where you would think it would be—that means it’s authentic or can be authenticated in any other way—and the idea that statements in the documents would be admissible for their truth. But there is no justification, simply because a document is authentic, for it to be admissible under hearsay exception.
“If that were true you’d only have rule 901 of the Federal Rules of Evidence–you wouldn’t have any hearsay exceptions at all. So why is this rule one which should equate authenticity with admissibility under the hearsay exception, when no other hearsay exception is based on that.