COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

Argued at Richmond, Virginia 

CHANCE TAYLOR 

 OPINION BY 

v. Record No. 0938-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 Charles R. Watson for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Chance Taylor (appellant) appeals his convictions of three 

counts of possession of cocaine with intent to distribute. He 

contends the trial court erred (1) by admitting into evidence the 

date stamp on a certificate of drug analysis apparently affixed 

when the certificate was received by an employee of the trial 

court's clerk's office, and (2) by admitting the certificate of 

drug analysis itself in violation of Code § 19.2-187. A panel of 

this Court reversed the judgment of the trial court, holding that 

the Commonwealth did not authenticate the date stamp. Taylor v. 

Commonwealth, 25 Va. App. 457, 463, 489 S.E.2d 250, 253 (1997). 

Upon rehearing en banc, we affirm appellant's convictions. 
 -2- 

 I. 

 FACTS 

 Appellant was charged with three counts of possessing 

cocaine with intent to distribute and was tried on October 27, 

1995. At trial, a narcotics detective testified that on three 

separate occasions he purchased a substance from appellant that 

appeared to be crack cocaine. After the detective testified, the 

Commonwealth's attorney offered a certificate of drug analysis 

(certificate) prepared by Anthony A. Burke, a forensic scientist 

with the Commonwealth's Division of Forensic Science. The 

certificate included Mr. Burke's written statement that a 

laboratory analysis of the items purchased from appellant 

established that they were cocaine. On the face of the 

certificate was an impression made by a mechanical date stamp 

that stated: 

RECEIVED AND FILED 

JUL 13 1995 

CHESTERFIELD CIRCUIT 

 COURT 

Other than the date stamp, the certificate contained no 

handwriting or other indicia that it was received by the clerk of 

the trial court prior to appellant's trial. 

 Appellant objected to the admission of the certificate on 

the ground that the Commonwealth failed to prove the certificate 

had been filed with the clerk of the trial court at least seven 
 -3- 

days prior to trial as required by Code § 19.2-187. He objected 

to the admission of the date stamp on the certificate, contending 

that it was inadmissible to prove the certificate was timely 

filed because it had not been authenticated. The trial court 

overruled appellant's objection and received both the certificate 

and the date stamp into evidence. Appellant later renewed his 

objection to the certificate and date stamp in a motion to 

strike. The trial court overruled the motion and convicted 

appellant of all three charges. 

 During the sentencing phase of the proceeding, appellant 

moved the trial court to reconsider its ruling on his motion to 

strike. He argued that, in addition to the lack of evidence 

establishing the date stamp's authenticity, the date stamp on the 

certificate was inadmissible because it was hearsay and not 

within any exception to the hearsay rule. He argued that the 

inadmissibility of the date stamp rendered the certificate 

inadmissible because, without the date stamp, the Commonwealth 

had failed to prove that the certificate had been filed in 

accordance with Code § 19.2-187. The trial court overruled 

appellant's motion and sentenced him. 

 On appeal, appellant contends that the trial court erred 

when it admitted the date stamp on the certificate. He argues 

that the date stamp was inadmissible either because it was not 

authenticated or it was hearsay and not within an exception to 

the hearsay rule. We disagree and affirm appellant's 
 -4- 

convictions. 
 -5- 

 II. 

AUTHENTICATION OF THE DATE STAMP 

 Appellant initially contends the date stamp was inadmissible 

because it was not authenticated. "'As a general rule, no 

writing may be admitted into evidence unless and until it has 

been "authenticated" . . . .'" Proctor v. Commonwealth, 14 Va. 

App. 937, 938, 419 S.E.2d 867, 868 (1992) (quoting Charles E. 

Friend, The Law of Evidence in Virginia § 180 (3d ed. 1988)). 

Authentication is the "providing of an evidentiary basis 

sufficient for the trier of fact to conclude that the writing 

came from the source claimed." Walters v. Littleton, 223 Va. 

446, 451, 290 S.E.2d 839, 842 (1982) (citing, inter alia, Bain v. 

Commonwealth, 215 Va. 89, 205 S.E.2d 641 (1974)); see also

Proctor, 14 Va. App. at 938, 419 S.E.2d at 868 (describing 

authentication as showing a document to be genuine) (quoting 

Friend, supra, at § 180). 

 Appellant does not challenge the authentication of the 

certificate of analysis itself, but, rather, the authentication 

of the date stamp affixed to the certificate. Under Code 

§ 19.2-187, a certificate of analysis is admissible to prove the 

truth of its contents without the appearance in court of the 

technician who conducted the analysis, provided the Commonwealth 

strictly complies with several "specific safeguards" listed in 

the statute. See Myrick v. Commonwealth, 13 Va. App. 333, 337, 

412 S.E.2d 176, 178 (1991). Included among the mandatory 
 -6- 

safeguards is the requirement that the certificate be "filed with 

the clerk of the court hearing the case at least seven days prior 

to the hearing or trial." Code § 19.2-187. When the 

Commonwealth seeks to admit a certificate of analysis containing 

hearsay evidence, it has the burden of proving that the 

certificate satisfies the requirements of Code § 19.2-187, 

including the filing requirement. See Neal v. Commonwealth, 15 

Va. App. 416, 420, 425 S.E.2d 521, 524 (1992) (stating that 

"[t]he party seeking to rely on an exception to the hearsay rule 

has the burden of establishing admissibility"). The 

admissibility of the date stamp on the certificate in this case 

is, therefore, essential to proving the Commonwealth's claim that 

the certificate had been filed in accordance with Code 

§ 19.2-187. 

 We hold that the trial court properly overruled appellant's 

objection to the admission of the certificate of analysis based 

on his claim that the date stamp was not properly authenticated. 

 In addressing the authenticity of the date stamp, the trial 

court acknowledged appellant's argument that "[t]here is no 

evidence to say that that's the proper stamp of the court or 

that, in fact, that's the kind of stamp the court uses." The 

court ruled, however, that the date stamp "is an official stamp 

of the court and papers received in the court at the clerk's 

office." 

 "[T]he fact of judicial notice must appear from the record." 
 -7- 

Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 

298 (1988) (citing Keesee v. Commonwealth, 216 Va. 174, 175, 217 

S.E.2d 808, 809 (1975) (per curiam)). Although the court did not 

use the words "judicial notice," we find that the trial court's 

ruling indicates that it took judicial notice of the identity of 

the date stamp. 

 "Judicial notice permits a court to determine the existence 

of a fact without formal evidence tending to support that fact." 

Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d 

438, 439 (citing Friend, supra, at § 268), aff'd on reh'g, 14 Va. 

App. 834, 425 S.E.2d 807 (1992). A trial court may take judicial 

notice of those facts that are either (1) so "generally known" 

within the jurisdiction or (2) so "easily ascertainable" by 

reference to reliable sources that reasonably informed people in 

the community would not regard them as reasonably subject to 

dispute. Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698, 

703 (1978); see also 2 McCormick on Evidence § 328 (John William 

Strong ed., 4th ed. 1992); Friend, supra, at § 19-2. 

 "The taking of judicial notice is generally within the 

discretion of the trial court." Ryan, 219 Va. at 446, 247 S.E.2d 

at 703 (citing Randall v. Commonwealth, 183 Va. 182, 186, 31 

S.E.2d 571, 572 (1944)). A trial court's discretion to take 

judicial notice of facts, however, is not without limits. A 

trial court may not take judicial notice of matters that are not 

otherwise judicially noticeable, merely because the judge happens 
 -8- 

to have individual and extrajudicial knowledge of those matters. 

See Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 

(1942). In addition, regarding judicial records, a trial court 

"will not take judicial notice of its records, judgments and 

orders in other and different cases or proceedings, even though 

such cases or proceedings may be between the same parties and in 

relation to the same subject matter." Fleming v. Anderson, 187 

Va. 788, 794, 48 S.E.2d 269, 272 (1948). The question before 

this Court is whether the trial court abused its discretion in 

taking judicial notice of the date stamp's authenticity. 

 We find no abuse of discretion in this case. The trial 

court did not expressly state the ground on which it based its 

judicial notice of the identity of its official date stamp. 

Judicial notice of the identity of the official date stamp of a 

court's clerk's office is proper, however, because this fact is 

easily ascertainable by reference to a reliable source. The 

actual date stamp utilized by a trial court's clerk's office is 

in such close proximity to a trial court that it can be easily 

inspected by the trial judge to verify its identity. With a 

source of indisputable accuracy so readily accessible, a 

reasonably informed person would not have regarded the identity 

of the trial court's official date stamp as reasonably subject to 

dispute. 

 II. 

ADMISSION OF THE DATE STAMP AS HEARSAY 
 -9- 

 Appellant also contends the date stamp was inadmissible 

hearsay. "'The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion.'" Brown v. 

Commonwealth, 25 Va. App. 171, 181, 487 S.E.2d 248, 253 (1997) 

(en banc) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 

S.E.2d 838, 842 (1988)) (addressing issue of whether out-of-court 

statement was offered for the truth of the matter asserted). Of 

course, a trial court's discretion is not without limits. See, 

e.g., Wright v. Commonwealth, 23 Va. App. 1, 8-9, 473 S.E.2d 707, 

710 (1996) (en banc) ("Additionally, while a trial court 

generally has discretion in ruling on the admissibility of 

evidence, a trial court has no discretion to apply the doctrine 

of curative admissibility if the party seeking to invoke it 

intentionally failed to object to the inadmissible [hearsay] 

evidence in order to gain admission of otherwise inadmissible 

[hearsay] evidence." (citations omitted)). "[A] trial court 'by 

definition abuses its discretion when it makes an error of law.'" 

Shooltz v. Shooltz, 27 Va. App. 255, 271, 498 S.E.2d 437, 441 

(1998) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). 

 "Hearsay is an out-of-court statement offered to prove the 

truth of the matter asserted." Garcia v. Commonwealth, 21 Va. 

App. 445, 450, 464 S.E.2d 563, 565 (1995) (en banc) (citing 

Tickel v. Commonwealth, 11 Va. App. 558, 564, 400 S.E.2d 534, 538 

(1991)). "'Hearsay evidence is testimony in court, or written 
 -10- 

evidence, of a statement made out of court, the statement being 

offered as an assertion to show the truth of matters asserted 

therein, and thus resting for its value upon the credibility of 

the out-of-court asserter.'" Stevenson v. Commonwealth, 218 Va. 

462, 465, 237 S.E.2d 779, 781 (1977) (quoting McCormick on 

Evidence § 246 (2d ed. 1972)). 

 The date stamp in this case was written evidence of the 

out-of-court statement made by an employee of the trial court's 

clerk's office that the document bearing the date stamp was filed 

with the clerk's office on the date indicated. The Commonwealth 

offered the date stamp to prove that the certificate of analysis 

had been received and filed in the Chesterfield Circuit Court on 

July 13, 1995. As such, the date stamp was hearsay because it 

was an out-of-court statement offered to prove the truth of the 

matter asserted. Nonetheless, we hold the trial court properly 

admitted the date stamp under the judicial records exception to 

the hearsay rule codified in Code § 8.01-389. 

 "'As a general rule, hearsay evidence is incompetent and 

inadmissible,' and '[t]he party seeking to rely upon an exception 

to the hearsay rule has the burden of establishing 

admissibility.'" Braxton v. Commonwealth, 26 Va. App. 176, 

183-84, 493 S.E.2d 688, 691 (1997) (quoting Neal, 15 Va. App. at 

420-21, 425 S.E.2d at 524). Generally, "authenticating a 

document -- that is, proving that it is genuine -- does not 

resolve other obstacles that may prevent the evidence from being 
 -11- 

admissible. The hearsay issue must be resolved independently 

. . . ." Hall v. Commonwealth, 15 Va. App. 170, 175, 421 S.E.2d 

887, 890 (1992) (citation omitted). In Virginia, the law of 

hearsay is governed by both common law and statute. See, e.g., 

Terry v. Commonwealth, 24 Va. App. 627, 633, 484 S.E.2d 614, 616 

(1997) (explaining relationship between common law and statutory 

"recent complaint" exceptions); see also Hanson v. Commonwealth, 

14 Va. App. 173, 185, 416 S.E.2d 14, 21 (1992) (explaining that 

Virginia has not adopted codified rules of evidence). 

 Code Section 8.01-389(A) provides: 

 The records of any judicial proceeding and 

any other official records of any court of 

this Commonwealth shall be received as prima

facie evidence provided that such records are 

authenticated and certified by the clerk of 

the court where preserved to be a true 

record. 

In the same way that "Code § 8.01-390 has codified the official 

written documents exception [to the hearsay rule] recognized in 

Virginia for documents or copies of documents that are properly 

authenticated in accordance with its requirements," Ingram v. 

Commonwealth, 1 Va. App. 335, 340, 338 S.E.2d 657, 659 (1986), 

its companion statute Code § 8.01-389 "codifies as part of the 

official records exception to the hearsay rule judicial 'records' 

which are properly authenticated." Dingus v. Commonwealth, 23 

Va. App. 382, 392, 477 S.E.2d 303, 308 (1996) (Coleman, J., 

concurring in part and dissenting in part) (citing Owens v. 

Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990)). 
 -12- 

 Although the language of Code § 8.01-389(A) requires that a 

judicial record be "authenticated and certified by the clerk of 

the court where preserved to be a true record" prior to its 

admission, it does not indicate that the formal introduction of 

evidence is the exclusive means by which this requirement can be 

satisfied. In Owens, 10 Va. App. at 311, 391 S.E.2d at 607 

(citations omitted), we addressed the meaning of this 

requirement: 

 For purposes of this Code section the terms 

"authenticated" and "certified" are basically 

synonymous and we are unwilling to place 

undue significance on the fact they are used 

in the conjunctive in the statute. 

Authentication is merely the process of 

showing that a document is genuine and that 

it is what its proponent claims it to be. As 

we noted in Ingram v. Commonwealth, 1 Va. 

App. 335, 338 S.E.2d 657 (1986), "[t]he 

underlying rationale which justifies 

admitting facts contained in official records 

as an exception to the hearsay rule is that 

the concern for reliability is largely 

obviated because the nature and source of the 

evidence enhance the prospect of its 

trustworthiness." 

 The principles we articulated in Owens are applicable here. 

 Because the trial court took judicial notice that the date stamp 

was genuine and was what its proponent claimed it to be, the date 

stamp was authenticated within the meaning of Code § 8.01-389(A). 

 The policy basis for the judicial records exception codified in 

Code § 8.01-389(A) was satisfied because the identity of the date 

stamp was so easily ascertainable by reference to reliable 

sources that reasonably informed people in the community would 
 -13- 

not regard it as reasonably subject to dispute. We therefore 

hold that the date stamp was sufficiently "authenticated and 

certified" to satisfy the requirements of the statute.1

 Because 

the date stamp met the authentication requirement of the statute, 

it fell within the judicial records exception to the hearsay 

rule, and "shall be received as prima facie evidence." Code 

§ 8.01-389; cf. Ingram, 1 Va. App. at 340, 338 S.E.2d at 659 

(explaining that Code § 8.01-389 codifies the official records 

exception to the hearsay rule). 

 In summary, we hold that a court may take judicial notice of 

the identity of the date stamp employed by its clerk because the 

information is easily ascertainable through reference to the 

actual date stamp. We also hold that the trial court's judicial 

notice of the authenticity of the date stamp satisfies the 

authentication requirement of Code § 8.01-389 and that therefore 

the court did not err in admitting the date stamp as a judicial 

record. Once properly admitted, the date stamp provided evidence 

that the certificate of analysis was filed with the court at 

least seven days in advance of trial. Code § 19.2-187. 

Therefore, we find that the certificate of analysis was properly 

admitted into evidence and affirm appellant's convictions. 

 Affirmed.

 

 1By so holding, we express no opinion on means of 

authentication other than judicial notice or certification by the 

clerk of the court. 
 -14- 

Benton, J., with whom Elder, J., joins, dissenting. 

 At trial, the Commonwealth sought to admit a certificate of 

analysis pursuant to Code § 19.2-187. In pertinent part, that 

statute reads as follows: 

 In any hearing or trial of any criminal 

offense . . . , a certificate of analysis of 

a person performing an analysis . . . 

performed in any laboratory operated by the 

. . . the Division of Forensic Science when 

. . . such certificate is duly attested by 

such person, shall be admissible in evidence 

as evidence of the facts therein stated and 

the results of the analysis or examination 

referred to therein, provided . . . the 

certificate of analysis is filed with the 

clerk of the court hearing the case at least 

seven days prior to the hearing or trial 

. . . . 

* * * * * * * 

 Any such certificate of analysis 

purporting to be signed by any such person 

shall be admissible as evidence in such 

hearing or trial without any proof of the 

seal or signature or of the official 

character of the person whose name is signed 

to it. 

Code § 19.2-187. Because "[t]he statute deals with criminal 

matters, and it undertakes to make admissible evidence which 

otherwise might be subject to a valid hearsay objection," the 

filing requirement in the statute must be "construed strictly 

against the Commonwealth and in favor of the accused." Gray v. 

Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980). 

 I. 

 The Commonwealth sought to prove the filing requirement by 

offering as evidence the following legend made by a stamp on the 
 -15- 

face of the certificate: 

RECEIVED AND FILED 

JUL 13 1995 

 CHESTERFIELD CIRCUIT 

 COURT 

No evidence proved that the stamp was the official stamp of the 

Chesterfield Circuit Court Clerk's Office. No evidence proved 

who affixed the legend. No employee of the clerk's office 

certified or authenticated the legend by writing or testimony. 

 "All writings are subject to the requirement of 

authentication, which is the providing of an evidentiary basis 

sufficient for the trier of fact to conclude that the writing 

came from the source claimed." Walters v. Littleton, 223 Va. 

446, 451, 290 S.E.2d 839, 842 (1982). "'As a general rule, no 

writing may be admitted into evidence unless and until it has 

been 'authenticated,' i.e., until it has been shown to be 

genuine.'" Proctor v. Commonwealth, 14 Va. App. 937, 938, 419 

S.E.2d 867, 868 (1992) (citation omitted). See also 2 McCormick 

on Evidence § 218 (4th ed. 1992). However, "authenticating a 

document . . . does not resolve other obstacles that may prevent 

the evidence from being admissible." Hall v. Commonwealth, 15 

Va. App. 170, 175, 421 S.E.2d 887, 890 (1992). Authentication is 

"a separate and distinct evidentiary problem." Walters, 223 Va. 

at 451, 290 S.E.2d at 842. Because authentication only 

establishes the genuineness of the item, mere proof of 

authenticity does not necessarily resolve the question of 

admissibility. See 2 McCormick on Evidence § 218, at 36. 
 -16- 

 The majority concludes that the trial judge judicially 

noticed that the legend on the certificate was "an official 

stamp."2

 The record contains no indication, however, that the 

trial judge actually judicially noticed that the legend on the 

certificate was the "official stamp" of the clerk's office. Our 

decisions specifically state that "the fact of judicial notice 

must appear from the record." Sutherland v. Commonwealth, 6 Va. 

App. 378, 383, 368 S.E.2d 295, 298 (1988). When the issue was 

raised at trial, the trial judge merely noted that "the question 

. . . becomes whether or not that stamp is sufficient without a 

personal identification of the clerk." The judge then ruled that 

the fact of the legend on the certificate, without more, was 

sufficient to authenticate it. 

 Although no name or title is ascribed to the legend, the 

majority concludes that the trial judge could infer from the 

presence of the legend that it was genuine and affixed by some 

official of the clerk's office. In short, the majority holds 

that the mere presence of the legend, without signature, 

sufficiently authenticates the document. The majority holds that 

 

 2The Commonwealth did not address the issue of judicial 

notice in either its brief or oral argument during the original 

appellate hearing in this case. Instead, the Commonwealth's sole 

argument was that the evidence was sufficient to prove that the 

certificate of analysis was filed seven days before appellant's 

trial in accordance with Code § 19.2-187. Only after the 

original panel decision held that the evidence was insufficient 

did the Commonwealth raise for the first time its argument that 

"the trial court was entitled to -- and effectively did in this 

case -- take judicial notice of the documents in its own court 

file." 
 -17- 

appearance alone suffices to authenticate the item. However, in 

Carroll v. Commonwealth, 10 Va. App. 686, 396 S.E.2d 137 (1990), 

we held that a document purporting to be from the clerk's office 

was not properly authenticated, where the person purporting to 

sign the document on behalf of the clerk was not identified and 

was not shown to be authorized by law to act. See id. at 691, 

396 S.E.2d at 140. 

 The issue in this case is whether it is appropriate to infer 

from the presence of a purported official legend that the legend 

is genuine and was affixed by an official in the clerk's office. 

See 7 Wigmore, Evidence § 2162, at 783 (Chadbourn rev. 1974) 

(stating that these elements "are distinct . . . for it might be 

[the clerk's] impression and yet another person might have 

affixed it"). See also 3 Spencer S. Gard, Jones on Evidence

§ 17:17, at 274 (6th ed. 1972) (stating that authentication 

requires proof of execution as well as proof of the "source from 

which [the writing] was derived"); 2 McCormick on Evidence § 218, 

at 36 (stating that authentication requires "proof of authorship 

of, or other connection with, writings"). Thus, whether the 

legend was authentic depends upon whether (1) the legend was the 

official mark of the circuit court clerk's office and (2) whether 

it was affixed by the clerk or someone authorized to act on the 

clerk's behalf. Even if the trial judge could have taken 

judicial notice of the fact that the legend was the "official 

stamp" of the clerk's office, he did not and could not take 
 -18- 

judicial notice of the fact that the legend on the certificate of 

analysis was genuinely affixed by the clerk or someone 

"authorized by law to act in place of the clerk." Carroll, 10 

Va. App. at 691, 386 S.E.2d at 140. 

 The determination of who affixed the legend would not be a 

fact subject to judicial notice as a matter that is "generally 

known" or "easily ascertainable." Doe v. Doe, 222 Va. 736, 746, 

284 S.E.2d 799, 805 (1981). While "[i]t is conceivable that a 

court might judicially know what the design of a certain public 

[stamp] was, . . . this would not of itself enable the judge to 

declare that the specific impression offered in court was genuine 

or forged." 7 Wigmore, supra, § 2161, at 784. This is so 

because "the principle of judicial notice, i.e., of assuming the 

truth of an allegation without any evidence, rests on the 

conceded notoriety of the fact alleged, as being too well known 

to need evidence; obviously, this can never be the case with the 

specific act of executing a particular document." Id.

 No evidence in the record proved that the legend was affixed 

by an official of the clerk's office. Because the legend 

contains no signature, initials, or any other indication of who 

affixed it, the trial judge had no evidence from which he could 

find that the legend was affixed by the clerk or someone 

"authorized to act in place of the clerk." Carroll, 10 Va. App. 

at 691, 386 S.E.2d at 140. 

 Authentication may be accomplished by testimony of a 
 -19- 

competent witness with knowledge. See Jackson v. Commonwealth, 

13 Va. App. 599, 602, 413 S.E.2d 662, 665 (1992). Authentication 

may also be accomplished by the fixing of the signature or seal 

of office of the clerk. See 7 Wigmore, supra, § 2131, at 714. 

Neither was done. The filing requirement of Code § 19.2-187 

pertaining to the certificate of analysis must be "strictly 

construed against the Commonwealth and in favor of the accused." 

Gray, 220 Va. at 945, 265 S.E.2d at 706. Thus, on this 

evidence, I would hold that the Commonwealth failed to 

authenticate the legend because the trial judge had no 

"evidentiary basis sufficient . . . to conclude that the [legend] 

came from the source claimed." Walters, 223 Va. at 451, 290 

S.E.2d at 842. Accordingly, no evidence proved that the 

certificate of analysis was filed in the clerk's office pursuant 

to the requirements of Code § 19.2-187. 

 II. 

 Although the failure to authenticate the legend is 

dispositive, I address the majority's discussion of the hearsay 

issue because I believe it is also flawed. The majority holds 

that the trial judge properly admitted the legend on the 

certificate under the provisions of Code § 8.01-389. That 

statutory exception to the hearsay rule provides, in pertinent 

part, as follows: 

 The records of any judicial proceeding and 

any other official records of any court of 

this Commonwealth shall be received as prima

facie evidence provided that such records are 

authenticated and certified by the clerk of 
 -20- 

the court where preserved to be a true 

record. 

Code § 8.01-389(A) (emphasis added). For the reasons I have 

previously stated, the Commonwealth failed to authenticate the 

legend. However, even assuming, as the majority asserts, that 

the legend was authenticated, that fact is not sufficient to 

render the document admissible under Code § 8.01-389(A). To be 

admissible, the legend must be "authenticated and certified by 

the clerk of the court where preserved to be a true record." 

Code § 8.01-389(A) (emphasis added). The record in this case 

contains no evidence that the clerk of the court where the 

document was required to be lodged "certified" that the legend on 

the document was true. The majority relies, however, upon Owens 

v. Commonwealth, 10 Va. App. 309, 391 S.E.2d 605 (1990), to hold 

that certification was not required because authentication was 

sufficient. I believe, first, the majority reads Owens too 

broadly and, second, if Owens is properly interpreted by the 

majority, the decision in Owens is plainly wrong and should be 

reversed. 

 In Code § 8.01-389(A), the legislature statutorily adopted 

the common law requirement that "records of any judicial 

proceeding and any other official records of any court of this 

Commonwealth shall be received as prima facie evidence provided 

that such records are authenticated and certified by the clerk of 

the court where preserved to be a true record." Code 

§ 8.01-389(A). See 5 Wigmore, Evidence, § 1680-1681a, at 912-13, 
 -21- 

919-21 (Chadbourn rev. 1974). The statute does not adopt a 

principle of certification by authentication; it requires 

authentication and certification. The clear language of the 

statute uses authentication and certification conjunctively. 

Both conditions must be present before the document can be 

admitted, and the proponent of the document bears the burden of 

proving both conditions exist. 

 In Owens, the "order was stamped 'A COPY, TESTE: WILLIAM T. 

RYAN, CLERK' and undersigned by the deputy clerk." 10 Va. App. 

at 311, 391 S.E.2d at 606. That document contained the clerk's 

statement that the document was a true copy, an attestation by 

the clerk, and the signature of the deputy clerk attesting to the 

clerk's certification. Thus, the facts proved the document was 

both "authenticated and certified by the clerk of the court." 

Code § 8.01-389(A). Indeed, the Owens court noted that those 

facts were "sufficient to 'authenticate and certify' the document 

within the meaning of Code § 8.01-389." 10 Va. App. at 311, 391 

S.E.2d at 606. 

 In Owens, and now in this case, the Court reads out of the 

statute the clear legislative mandate that both authentication 

and certification are required before the record is admitted. 

Those terms were not synonymous under the common law, and we have 

no indication that the legislature intended them to be synonymous 

when adopting Code § 8.01-389(A). See also 5 Wigmore, supra, 

§ 1679, at 877 ("It was natural, when declaring certified copies 
 -22- 

admissible, [for legislatures] to provide in the same place for a 

definite mode of authenticating them; and hence the two sets of 

rules -- the admissibility of certified copies, and the proper 

modes of authenticating such copies -- are customarily provided 

for at the same time by the same statutory act."). Obviously, 

"[w]hen the official custodian certifies a copy to be used in 

evidence, and such a copy is admissible under the hearsay 

exception . . . , the certificate also testifies, expressly or by 

implication, to the genuineness of the original in his custody 

from which the copy is made." 7 Wigmore, supra, § 2158, at 772. 

 To be admissible under Code § 8.01-389(A), however, the record 

must be both certified and authenticated. If Owens is read in 

this light, despite its statement that "the terms 'authenticated' 

and 'certified' are basically synonymous," 10 Va. App. at 311, 

391 S.E.2d at 607, it clearly does not support the majority's 

holding in this case. 

 Authentication addresses the genuineness of a document. 

Thus, authentication ensures that a document is what it purports 

to be. For example, under the common law, the act of a public 

official fixing the seal of that official's office to a document 

was a means of authentication. 

 Certification, however, involves "a written assurance, or 

official representation, that some act has or has not been done, 

or that some event occurred, or some legal formality has been 

complied with." Black's Law Dictionary 225 (6th ed. 1990). When 
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a person certifies a document, he or she is attesting to the fact 

that what is contained in the document is true. Thus, a 

"'certificate' by a public officer is a statement . . . which is 

by law made evidence of the truth of the facts stated for all or 

for certain purposes." Id.3

 Here, if the clerk had certified 

the legend on the certificate of analysis, he or she would have 

been representing that the facts contained in the legend -- the 

date the certificate of analysis was filed and the office in 

which it was filed -- were true. Because the legend on the 

certificate of analysis appears without any certification by the 

clerk, no evidence proved that the certificate of analysis was 

filed in the clerk's office on that date. 

 In Carroll, we reversed the trial judge's decision to admit 

a document with the following legend: 

 A COPY TESTE: 

 WALTON F. MITCHELL, JR., CLERK 

 CRAIG COUNTY CIRCUIT COURT 

 BY /s/ Peggy B. Elmore

 /s/ Peggy B. Elmore 

Id. at 689, 396 S.E.2d at 139. We held that the document had not 

been authenticated and certified as required by Code 

§ 8.01-389(A). Id. at 691, 396 S.E.2d at 140. We reasoned as 

 

 3Certification may often encompass authentication. See 18 

U.S.C.A. § 3506 (certification by a custodian that certain facts 

are true "shall authenticate" a record of a regularly conducted 

activity); Uniform Rule of Evidence 902(11) (if a custodian 

certifies, or declares under oath, that certain facts are true, a 

record of a regularly conducted activity is self-authenticating); 

7 Wigmore, supra, § 2158, at 772 (certification of a copy also 

testifies to authenticity of original). However, authentication 

does not encompass certification. 
 -24- 

follows: 

 [T]he deficiency in the certificate arises 

with the signature. The document was not 

"certified and authenticated" by the clerk 

but by Peggy B. Elmore. Neither the document 

itself nor any other evidence in the record 

establishes that Peggy B. Elmore is 

authorized by law to act in the place of the 

clerk. The order does not state that she is 

a deputy clerk, nor does it contain initials 

or other indicia to demonstrate that she is a 

deputy clerk. No evidence was presented to 

the trial court as to who Peggy B. Elmore is 

or whether she is authorized to act in place 

of the clerk. 

Id. at 691, 396 S.E.2d at 140. 

 Without the clerk's certification and authentication in this 

case, the trial judge lacked assurance that the certificate of 

analysis was not placed in the clerk's file by a third person and 

at a time different than proported on the legend. 

 For these reasons, I would reverse the convictions and 

remand for a new trial.