March 20, 2017 Articles

Which Hearsay Exception Admits Marriage Certificates? Rule 803(12) Says "I Do"

Litigants should bear in mind that a certificate's survival of a hearsay objection does not mean it is properly authenticated or cannot be refuted

by Sarah P. Hogarth

The exception from hearsay for certificates of marriage, baptism, and similar ceremonies under Federal Rule of Evidence 803(12) is rarely discussed or litigated despite its routine use. As a matter of course, to prove a ceremonial marriage, a party uses hearsay—namely, the marriage certificate. The certificate survives a hearsay objection because of Rule 803(12).

Under Rule 803(12), “[a] statement of fact contained in a certificate” of “Marriage, Baptism, and Similar Ceremonies” is excluded from hearsay if

(A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it.

Rule 803(12) overlaps with Rule 803(9) (public records of vital statistics) and Rule 803(11) (records of religious organizations), but Rule 803(12) more broadly allows admission of certificates that an officiant issued to the participant. See McMorrow v. Schweiker, 561 F. Supp. 584, 589 (D.N.J. 1982) (ceremonial marriage proved by “the marriage certificate issued by the performing official” or by “a copy of an official record, as of a municipal clerk or registrar of vital statistics, or of religious organizations”).

Preserving a certificate from a hearsay objection, however, does not remove the requirement of authentication. Certificates executed by public officials (such as a judge performing a marriage) are self-authenticating under Rule 902, but proponents of certificates executed by clergy or other individuals must offer proof that the person was authorized to make and did make the certificate.

A deficiency in authentication precluded admission of a baptism certification in Almeida v. United States Citizenship & Immigration Services, No. 11-cv-00061, 2013 WL 592904 (D. Nev. Feb. 13, 2013). There, Almeida petitioned to amend his naturalization certificate to correct his birthdate. In support, he provided baptism certificates acquired from the Parochial Register of St. Patrick’s Cathedral in Karachi, Pakistan. The court accepted that the certificates could be excepted from the rule against hearsay under either Rule 803(11) as regularly kept records of a religious organization or Rule 803(12) as certificates of baptism. But the court held that the certificates were inadmissible because they had not been authenticated either by a records custodian or in some other fashion.

After demonstrating authentication and authority, the third element of the exception—requiring that the certificate have been issued at the time of the act—is satisfied by the date in the certificate itself “in view of the presumption that a document was executed on the date it bears.” See Fed. R. Evid. 803, advisory committee’s note to ¶ (12) (1972).

Although the facts contained in a certificate admissible under Rule 803(12) still need to comply with Rule 602 and be within the personal knowledge of the certificate maker, the requirement of personal knowledge is relaxed. Courts admit a statement contained in the certificate if it “is based on the personal knowledge of the person who supplied the information to the issuer of the certificate, because it is assumed that the person supplying the information would be unlikely to be untruthful on such an occasion.” 5 Weinstein’s Federal Evidence § 803.14 (2d ed. 2016).

For example, in Cavazos v. Kerry, No. 15-CV-0661, 2016 WL 4126142 (N.D. Tex. Aug. 3, 2016), Jose Cavazos and his wife, Fatima, sought a judgment declaring them to be citizens of the United States because Jose was born in the United States. Jose explained that his parents, citizens of Mexico, were on a business trip to Vancouver, Washington, when he was born. On the return trip to Mexico, Jose fell ill, and his family stopped to stay with relatives in Texas. Jose’s father continued on to Mexico alone and registered Jose’s birth as having occurred in Nuevo Leon, Mexico. Jose’s father returned and picked up his family in Texas, but on the drive back to Mexico, the family stopped in Roma, Texas, to have Jose baptized. Jose’s baptism certificate at Our Lady of Refuge Catholic Church in Roma, Texas, listed Jose’s birthplace as “Menlo, Pacific County, Washington.” The court admitted the birth certificate, and the fact of Jose’s birth in Pacific County, Washington, over the government’s hearsay objection. Implicit in the court’s holding is the acknowledgement that even though the maker of the certificate did not have strict personal knowledge of Jose’s birthplace, the information supplied was sufficiently trustworthy to survive the hearsay objection.

Finally, all statements of fact contained in certificates admitted under Rule 803(12) can be refuted. In Cavazos, the court admitted Jose’s certificate of baptism, finding that it created a genuine issue of material fact as to Jose’s birthplace. The facts contained in the baptismal certificate were not conclusive, however, and instead, the government was permitted to admit other evidence refuting Jose’s purported birthplace.

Although Rule 803(12) is rarely at issue, its importance is evident. Certificates of marriage, baptism, and similar ceremonies are unlikely to be excluded on hearsay grounds. But litigants should bear in mind that a certificate’s survival of a hearsay objection does not mean it is properly authenticated or cannot be refuted.

 

Sarah P. Hogarth is an associate at McDermott Will & Emery LLP in Washington, D.C.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).