NOTES TO RULE 44
HISTORY: (Amended July 1, 1966; Aug. 1, 1987; Dec. 1, 1991)
EXPLANATORY NOTES: These amendments were developed collaboratively by the Advisory Committee on Civil Rules, the Commission and Advisory Committee on International Rules of Judicial Procedure (see Act of September 2, 1958, 72 Stat 1743), and the Columbia Law School Project on International Procedure.
Notes of Advisory Committee on Rules.
This rule provides a simple and uniform method of proving public records, and entry or lack of entry therein, in all cases including those specifically provided for by statutes of the United States. Such statutes are not superseded, however, and proof may also be made according to their provisions whenever they differ from this rule. Some of those statutes are:
USC, Title 28, former:
§ 661 (Copies of department or corporation records
and papers; admissibility; seal)
§ 662 (Same; in office of General Counsel of the Treasury)
§ 663 (Instruments and papers of Comptroller of Currency; admissibility)
§ 664 (Organization certificates of national banks; admissibility)
§ 665 (Transcripts from books of Treasury in suits against delinquents;
admissibility)
§ 666 (Same; certificate by Secretary or Assistant Secretary)
§ 670 (Admissibility of copies of statements of demands by Post Office Department)
§ 671 (Admissibility of copies of post office records and statement of accounts)
§ 672 (Admissibility of copies of records in General Land Office)
§ 673 (Admissibility of copies of records, and so forth, of Patent Office)
§ 674 (Copies of foreign letters patent as prima facie evidence)
§ 675 (Copies of specifications and drawings of patents admissible)
§ 676 (Extracts from Journals of Congress admissible when injunction of
secrecy removed)
§ 677 (Copies of records in offices of United States consuls admissible)
§ 678 (Books and papers in certain district courts)
§ 679 (Records in clerks' offices, western district of North Carolina)
§ 680 (Records in clerks' offices of former district of California)
§ 681 (Original records lost or destroyed; certified copy admissible)
§ 682 (Same; when certified copy not obtainable)
§ 685 (Same; certified copy of official papers)
§ 687 (Authentication of legislative acts; proof of judicial proceedings
of State)
§ 688 (Proofs of records in offices not pertaining to courts)
§ 689 (Copies of foreign records relating to land titles)
§ 695 (Writings and records made in regular course of business; admissibility)
§ 695e (Foreign documents on record in public offices; certification)
USC, Title 1:
§ 112 (Statutes at large; contents; admissibility
in evidence)
§ 113 ("Little and Brown's" edition of laws and treaties competent
evidence of Acts of Congress)
§ 204 (Codes and supplements as establishing prima facie the laws of United
States and District of Columbia, etc.)
§ 208 (Copies of supplements to Code of Laws of United States and of District
of Columbia Code and supplements; conclusive evidence of original)
USC, Title 5: § 490 (Records of Department of Interior; authenticated copies as evidence)
USC, Title 6: § 7 (Surety Companies as sureties; appointment of agents; service of process)
USC, Title 8:
§ 9a (Citizenship of children of persons naturalized
under certain laws; repatriation of native-born women married to aliens prior
to September 22, 1922; copies of proceedings)
§ 1443 (Regulations for execution of naturalization records; authorization;
admissibility as evidence)
USC, Title 11: § 44(d), (e), (f), (g) (Bankruptcy court proceedings and orders as evidence)
USC, Title 15:
§ 127 (Trade-mark records in Patent Office; copies
as evidence)
§ 52 (Smithsonian Institution; evidence of title to site and buildings)
USC, Title 25: § 6 (Bureau of Indian Affairs; seal; authenticated and certified documents; evidence)
USC, Title 31: § 46 (Laws governing General Accounting Office; copies of books, records, etc., thereof as evidence)
USC, Title 38: § 11g (Seal of Veterans' Administration; authentication of copies of records)
USC, Title 40:
§ 238 (National Archives; seal; reproduction of
archives; fee; admissibility in evidence of reproductions)
§ 270c (Bonds of contractors for public works; right of person furnishing
labor or material to copy of bond)
§§ 57--59 (Copies of land surveys, etc., in certain states and districts
admissible as evidence)
§ 83 (General Land Office registers and receivers; transcripts of records
as evidence)
USC, Title 46: § 823 (Records of Maritime Commissions; copies; publication of reports; evidence)
USC, Title 47:
§ 154(m) (Federal Communications Commission; copies
of reports and decisions as evidence)
§ 412 (Documents filed with Federal Communications Commission as public
records; prima facie evidence; confidential records)
USC, Title 49:
§ 14(3) (Interstate Commerce Commission reports
and decisions; printing and distribution of copies)
§ 16(13) (Copies of schedules, tariffs, etc., filed with Interstate Commerce
Commission as evidence)
§ 19a(i) (Valuation of property of carriers by Interstate Commerce Commission;
final published valuations as evidence)
Subdivision (b).
This provision relating to proof of lack of record is accommodated to the changes made in subdivision (a).
Subdivision (c).
The amendment insures that international agreements of the United States are unaffected by the rule. Several consular conventions contain provisions for reception of copies or summaries of foreign official records. See, e.g., Consular Conv. with Italy, May 8, 1878, art X, 20 Stat 725, TS No. 178 (Dept State 1878). See also 28 USC §§ 1740--42, 1745; Fakouri v Cadais, 149 F2d 321 (5th Cir 1945), cert den 326 US 742, 90 L Ed 443, 66 S Ct 54 (1945); 5 Moore's Federal Practice, par 44.05 (2d ed 1951).
Notes of Advisory Committee on proposed 1987 Amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on December 1991 Amendment of Rule.
The amendment to paragraph (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States, and adds a generic term to describe governments having a relationship with the United States such that their official records should be treated as domestic records.
The amendment to paragraph (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Moreover, it does not affect the former practice of attesting the records, but only changes the method of certifying the attestation.
The Hague Public Documents Convention provides that the requirement of a final certification is abolished and replaced with a model apostille, which is to be issued by officials of the country where the records are located. See Hague Public Documents Convention, Arts. 2-4. The apostille certifies the signature, official position, and seal of the attesting officer. The authority who issues the apostille must maintain a register or card index showing the serial number of the apostille and other relevant information recorded on it. A foreign court can then check the serial number and information on the apostille with the issuing authority in order to guard against the use of fraudulent apostilles. This system provides a reliable method for maintaining the integrity of the authentication process, and the apostille can be accorded greater weight than the normal authentication procedure because foreign officials are more likely to know the precise capacity under their law of the attesting officer than would an American official. See generally Comment, The United States and the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 11 HARV. INT'L L.J. 476, 482, 488 (1970).