## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . P D
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C A I N B R U T O N , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E E I G H T H C O U R T O F A P P E A L S

D E N T O N C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e u n a n i m o u s C o u r t .

I n this case , we must deter mine whether two State’s exhibi ts that purport to be fore ign public documents o r re cords wer e proper ly authentica ted under Rules of Evidence 902(3) and (4). 1 Although the documents meet some of the require ments of the rules, we hold t h at t h e documents

The State’s first g round for revie w asks: “W h ether the Court of Appea ls err ed by 1 deter mining that the trial court abused its discretion in admitting officia l documents from the United King dom beca

use the exhibi ts wer e not cer tified under Rule 902(4) and lacke d a ‘final cer tification’ under evidenc e Rule 902(3) an d the State did not establish g ood cause to dispense with the final cer tification requir ement under Rule 902(3).”BRUTON — 2

wer e not proper ly authentica ted beca use neither was acc ompanied by a final cer tification fr o m a diplomatic or consular officia l specifie d in Rule 902(3) and beca use g ood cause for failing to obtain

a final cer tification was lacking

. Consequently , we aff irm the judgme nt of the court of appea ls. 2 3

T E X
. R. E V I D . 902(3) a

nd (4) pr ovide: 2
Ex trinsic evidenc e of authenticity as a condition prec edent to admissibili ty is not require d with respec t to the following:
* * * (3) F oreign P ubl ic Docum ents. A document purporting to be executed or attested in an officia l capa ci t y b y a p erson, authorized by the laws of a fore ign country to make the execution or attestation, and acc ompanied by a final cer tification as to the g enuinene ss of the signa ture and officia l position (A) of the executing or attesting person, or (B ) of any fore ign officia l whose cer tificate of g enuinene ss of signa ture and official position rela tes to the execution or attestation or is in a chain of cer tificates of g enuinene ss of signa ture and officia l position rela ting to the execution or attestation. A final cer tif ication may be made by a secr etar y of embassy or leg ation, consul g ener al, consul, vice consul, or consular ag ent of the United States, or a diplomatic or c onsular off icial of the f

oreig n country assig ned or acc redited to the United States. I f rea sonable opportunity has been g iven to all parties to investiga te the authenticity and acc ura cy o f o fficia l documents, the court may , for g ood cause shown, order that they be trea ted as presumptively authentic without final cer tification or permit them to be evidenc ed by an attested summary with or without final cer tification. The final cer

tification shall be dispensed with whene ver both the United States and the fore ign country in which the officia l rec ord is located are parties to a trea ty or convent ion that abolishes or displaces such require ment, in which case the rec ord and the attestation shall be cer tified by the means provided in the trea ty or conve ntion. (4) Cert if i ed Co pies of P ubl ic Records. A copy of an officia l rec ord or repor t or entry there in, or of a document authorized by law to be rec orded or filed and actua lly rec orded or filed in a public office , including data compilations in any form cer tified as correc t by the custodi an or other person authorized t o m ake the cer tification, by cer tificate comply ing with para g raph (1), (2) or (3) of this rule or comply ing with any statute or other

rule pre scribed pur suant to statutory authority

. Due to our disposition of the ca se, we do not addre ss the State’s sec ond g round for 3 revie w, which a sks: “Whether the Court of Appe als err ed by holding that Appe llant could be linked to Ex hibit 13 only by State’s Exhi bit 11/14 where State’ s Ex hibit 12/15 also providedBRUTON — 3 I. BACKG ROUND
A. The Exhi bits The parties ag ree that appellant’ s first name is Peter. At issue here are three exhibi ts that 4
p u rp o rt to be documentar y evidenc e of prior convictions of a Peter Br uton from the Uni t ed King dom. State’s Exhi bit 13 consists of a letter and three “certific ates of conviction” pur porting 5

to be from the Norwic h Crown Court. The letter, addre ssed to the Denton County District Attorney and signe d by a person purporting to be a case worke r from that court, direc ts the District Attorney to the “enc losed Certifica tes of Conviction a s reque sted” for a “Pete r B ruton” with a da te of birth matching appellant’ s. The cer tificates of conviction “ce rtify ” a “Peter Br uton,” with a date of birth matching appellant’ s, as having a total of twelve convictions for “indec ent assault on a fema le.” The

cer tificates a re e ach signe d, with the t itle “Of fice r of the C rown Court” underneath the signa ture. The letter and the cer

tificates of conviction display a depiction of a crow n with a lion and a unicorn, and all four documents provide case numbers for the convictions. The cer tificates of conviction are d ated October , 31, 2008, and the letter ref err ing to those cer

tificates say s that the cer

tifi ca t es ar e enclose d in response to the D istrict Attorney ’s letter of October 17, 2008.

sufficie nt links t o convince a jury that the per son who had be en convic ted of off enses in the United King dom, as ce rtified in State’s Exhibi t 13, was the same person who c ommitt ed the Denton County

offe nses.” Def ense counsel admitted to such at trial, and we note that appellant has sty led the case 4 name on his brief

on discretionar

y revie w as “ Peter Cain B ruton v. State.” State’s Ex hibits 11 and 12 wer e reda cted, pu rs u ant to reque sts from defe nse counsel, to 5 eliminate extraneous materia l. The reda cted versions of these exhibi ts a re State’ s Ex hibits 14 and 15 respe ctively

. These exhibi ts wer e reda cted afte r the hear ing on their admissibili ty , so the parties ref err ed to the unreda cted versions. For the rea der’ s convenie nce, we ref er to the reda cted versions in our discussions, even whe n discussing the parties’ ref ere nces to the e x hibits, unl ess the conte x t require s otherwise.BRUTON — 4

State’s Ex hibit 14 purports to be an I nterpol computer printout that cont a in s a f in g erpr int car d and list of twelve convictions in the United King dom. The convictions purport to rela te to a “Peter
Kane Br uton” with a date of birth matching appellant’ s. The individual is identified as a car penter , wi t h ad dresse s in Norwic h (United King dom) and Carrollton (United States). The prin t o u t 6
descr ibes the individual as having a stocky build, blue ey es, and short, straig ht, dark brown hair. The fing erpr int car d contains rolled i m p re s s ions for a “Peter Br uton” with a date of birth matching appellant’ s. State’s Ex hibit 15 consists of a letter on “Nor folk Constabulary ” letterhe ad and a computer printout. The letter is a ddresse d to the Denton County District Attorney ’s Offic e and is sig ned by
someone purpor

ting to be a

Data Prote ction Disclosure U nit Office r of the Profe ssional Standards Depa rtment. The letter

states:
I write in reply to y our letter dated 25 May 2010 in which y ou have reque sted acc ess t h to all information in rela

tion to the above criminal prosec ution such as statements and repor ts for enhanc ed purposes only and not specific ally the criminal prosec ution. At this stag e, the reque st appea rs t o be excessive f

or the purpose and as such I am not prepa red to rele ase all of the repor ts, statements and rec ord of interview. I am howeve r, prepa

red to rele ase a reda cted copy of the Case Summary – I shall remove the names of

the victims/witnesses. The Case Sum mary is produce d by the offic er in char g e and is prese nted to the Crown Prosecution Service to decide whether or not an individual should be char g ed. I t i s a s ummary of the witness statements, events/alleg ations and the interview with the suspect. I have also enclose d a copy of the above individual’s conviction history which will show the outcome of the above prosec ution.
I n y our letter y ou have reque s ted ‘Certified Copies’. I am afr aid I am unable to provide this as we do not have a ‘Norf olk Constabulary ’ s t am p , h o weve r I have stamped the first p ages with ‘Profe ssional Standards’ which is the depar tment in

T h e Carrollton addre ss listed on the printout matches appellant’ s addre ss in Carrollto n , 6 except that a letter

stands in place of

the last numerica l digit of the house number.BRUTON — 5

which I work. 7
The c omputer printout is stamped “prof essional standar ds,” identifies a “Peter Kane Br uton” with

a date of birth matching appellant’ s, identifies the individual as a car penter , ident i fi es a Norwic h addre ss f or the person (same as in State’ s Ex hibit 14), and contains a list of twelve convictions for “indec ent assault on fe male under 16.” Evidence at the g uilt phase of trial indicated that appellant was a car penter and t h at the Norwic h addre ss identified in State’s Ex hibits 14 and 15 matched an addre ss at which appellant had resided. There was testimony at the punishment phase of trial t h at fing erpr ints obtained from appellant in Te x as matche d those found in State’s Exhibi t 14. B. Admissibility Hearing The State soug ht to introduce the three exhibi ts at the punishment stag e of trial. I n a hear ing 8
outside the presen ce of the jury , appellant objected that the documents had not been proper ly authentica ted, wer e hear say , and had not been sufficie ntly connec ted to a ppellant. Wit h respe ct to the authentica

tion question, appellant complained that the documents wer e not self-a uthenticating

. He arg ued that the documents wer e “not cer tified” and contained “some identify ing char acte ristics
that are not corr ect” including misspelling appellant’ s name, g iving an incorre ct Carrollton addre ss, descr ibing the person as “stocky ,” and descr ibing the person as having dark brown hair. Appellant also complained that the documents did “not contain any lang uag e or any kind of judgme nt that we

This is the unreda cted version of the letter, found in State’ s Ex hibit 12. Three se ntence s 7 wer e re dacte d in the version found in State’s Exhibit 15. Appellant was convicted of ag g rava ted sexual assault of a child and indece ncy with a child 8 b y contac t. He was ultimately sentenc ed on these counts to life and twenty y ear s’ imprisonmen t respe ctively

.BRUTON — 6

would be familiar with he re in T exas or in the United States,” did not ref er to a ny cause numbers, lacke d a seal, and, in some instances, bore illegible signa tures. Appellant acknow ledg ed that he had

rec eived copies of State’s Ex hibits 13 and 15 “some time ag o” but maintained that he had never seen

a copy of State’s exhibi t 14 until the day of the hear ing. Appellant also contende d that no one was
g oing to testify

about who printed the document in State’s Exhibi t 14 or wher e it came from. The State responde d that th e documents wer e admissible under Rules of Evidence 902(3) and 902(4). The State specific ally pointed to the “g ood cause ” portion of Rule 902(3) and to the letter

9
from the Professional Standards Depa rtment of the Norfolk Constabulary as satisfy ing the require ment. The State also contende d that the combination of information fo u n d i n the various documents wa s sufficient to tie appe llant to those documents. Appellant and the trial court also briefly discussed “g ood cause ” as it applied to State’s
Ex hibit 15. What appellant’s position was in this discussion is unclea r, though he seeme d to acknow ledg e that the d at a- p rotec tion office r could not cer tify something beca

use the Norfolk Constabulary did not have a stamp. Although the clar ity of appellant’ s arg uments is c louded by a number of interruptions, appellant appea rs to have been claiming that, though there might be g ood

cause for the lack of cer

tification on State’s Ex hibit 1 5 , State’s Ex hibit 15 was not sufficie ntly

connec ted to State’s Exhi bit 13. The trial court held that State’s Ex hibit 13 was cer tified, rema

rking that the documents did contain cause numbers and a s ea l

. T h e trial court commented that State’s Ex hibit 14 should be
trea ted like an NCI C or TCI C printout. Wit h respe ct to State’s Ex hibit 15, the trial court rema rked
that it was arg uably cer

tified beca

use of the “prof

essional s t an d ar d s ” stamp, but if it was not

See T E X
. R. E V I D . 902(3), ( 4). 9BRUTON — 7

cer tified, the letter g ave g ood cause beca use the Norfolk Constabulary does not have a stamp. The
trial court and the State discussed the fac t that various documents g ave the corr ect n am e, d at e of birth, occupa tion, and Norwic h addre ss for appellant, which serve d to tie the documents to him. 1 0
The trial c ourt admitted all three exhibi ts. C. Appeal
1. Argum ents of the Parties
On appea l, a

ppellant complained that the State failed to proper ly authentica te the exhibi ts.
He a rg ued: [T] his evidenc e did not come in the form of a conventional judgme nt and sentenc e, proper ly authentica

ted or testified to by a witness. Rather, the State cobbled toge ther sever al differ ent documents, including what appea r to be computer p rintouts and letters from cler

ks of Eng lish courts of undeter mined orig in

. . . . The evidenc e of the fore ign convictions did not pass admissibili ty muster for the prosec ution of any crime beca use the documents used by the State bore no proper authentica tion; in fac t, much of the information included in the various documents was flat wrong or could not be shown to connec t Ap p el l an t t o the alleg ed offe nses
. . . . L ike the documents used here by the State to showAppellant’s a lleg ed pre vious convictions for child abuse , the State in Banks could not rely on self-a uthentication beca

use the documents wer e not proper ly under seal

. . . . The State’s relianc e on Tex. R

. E v i d

. 9 02(3) in Appellant’s case was also misplaced becau s e n o t all of the documents used by the State—and admitted by the trial court—c onstitut ed documents that could satisfy the conditions of Rule 902(3). Rather, the trial court allowed the State to cobble toge ther disparate documents with uncer tified letters purporting to be from the Eng lish court in order to “authe nt i cate” the entire g roup of documents, including uncer tified computer pr intouts. The State arg ued that the trial court did not abuse its discretion in finding the documents to be authentic beca

use an “Of

fice r of the Crown Court attested that the documents wer e cer tified, and

. . . a case worke r in Norwic h Crown Court prov i d ed a further indication that the Certifica tes of

The prosec utor ref

err ed to a “Nor folk” addre ss, but the rec ord is clea r that the addre ss at 1 0 which appe llant resided a nd to which the docume nts refe rre d was in Norw ich.BRUTON — 8

Convictio n we re gen u ine.” The State conclude d that “State’s Ex hibit 13 was cer tified, State’s
Ex hibit [15] arg uably was cer tified by an officia l, and there was g ood cause to believe State’s
Ex hibits [ 14 and 15] could be found a uthentic by

the jury .”
I n his reply brief, appellant cited the lang uag e in Rule 902(3) reg arding a chain of cer tificates of g enuinene ss and ar g ued that the thre e exhibits “do not a ppear on their fac e to form any specific chain of fore ign documents, and n o wi t n es s testified about any purported connec tion betwee n the three documents.” Appellant further arg ued that the State “fa iled to prese nt any evidenc e that [t he] purported cler

k of Norwic h Co u rt wh o signe d Ex hibit 13 (but did not cer tify it), was, in fac t, the cler k of that cour

t.”
2. Opinion of the Court of Appeals Holding that State’s Ex hibits 13 throug h 15 wer e n o t proper ly authentica ted, the court of
appea ls reve rsed and rema nded for a new punishment hear ing. The court of appea ls first analy zed 1 1
the documents under Rule 902(3). The court of appea ls held that S t at e’ s Ex hibit 14 was a 1 2
“bar ebones computer printou t[ ]” that was “not self-a uthenticating ” under Rule 902(3) beca use it was “not executed or attested in an officia l capa city by any one and there is no final cer tification.” The

1 3

court of appea ls acknow ledg ed that State’s Ex hibit 15 contains a cover letter signe d by someone with the title of “Da ta Protection Disclosure Un i t Of fice r” but held that the exhibi t “lac k[s] the final

Bruton v. State , No. 08-11-00316- CR, sl ip op. at 16-20, 21 (Tex. App.–El Paso Aug ust 1 1 7, 2013, pet. g rante d) (not desig nated f or publication). Id. at 16-17. 1 2 Id. at 16. 1 3BRUTON — 9

cer tification require d by Rule 902(3).” Wit h respe ct to Ex hibit 13, the court of appea ls held that, 1 4
while the exhibi t was executed by an “Of fice r of the Crown Court,” it “lac ks a final cer tification.” 1 5
The court of appea ls f

urther held that the State “did not offe r any evidenc e supporting a finding of
g ood cause to dispense with the [final] cer tification require ment” and “ther e is no evidenc e that there is a trea ty or convention betwee n the Un i t ed States and the United King dom that abolishes the

cer tification requir ement or pr ovides for a differ ent ce rtification.” 1 6
The c ourt of appe als next analy zed the documents unde r Rule 902(4). T he cour t first held

t hat State’s Ex hibit 14 did “not contain any ty pe of cer tification.” Although State’s Ex hibit 1 5

1 7
contained a cover l etter signed by a “Data Protection Disclosure Unit Officer ,” the court held that “the office r does not cer

tify any of the fac ts require d by Rule 902(4).” And though State’s Ex hibit 1 8
13 was executed by an “Of fice r of the Crown Court,” the court of appea ls held that “the exhibi t lacks

a cer tificate in the form require d by Rule 902.” Fur ther, the court of appea ls he ld, e ven if State’s 1 9
Ex hibit 13 complied with Rule 902(4), it wa s never theless inadmissible “ beca use the State c annot link Appellant to the convictions in that exhibi t” due to the failure to authentica te State’s Ex hibit
14. The court of appea ls considere d State’s Ex hibit 14 to be the “linchpin” in the analy sis beca use 2 0

Id. 1 4 Id. 1 5 Id. at 16-17. 1 6 Id. at 17. 1 7 Id. 1 8 Id. 1 9 Id. at 17-18. 2 0BRUTON — 10

it include d the fing erpr int c ard that the State used to compa re to a ppellant’s known fing erpr ints. 2 1
D. Discr etionary Re view
1. State’s Argu m ents Wit h respe ct t o Ex hibit 13, the S tate complains that the court of appeals “did not specify how the exhibi t lacke d the form specifie d by the rule” and “off ere d no cog ent rea son why it should not have de fer

red to the tria l court’s ruling reg arding the exhibi t’s authenticity .” The State arg ues that the documents in State’s Ex hibit 13 contained “suff icient indicia of cer

tification” beca

use they

wer e “attested t o be certified b y a case worke r of the Norwich Crown C ourt, contained statements indicat i n g t h e documents wer e for cer tification purposes, bore the signa ture of an Offic er of the
Crown C ourt, and bore an official sea l.” The State f urther a rg ues that, eve n if the exhibit was not
proper ly cer

tified, “ther e was g ood cause to find the exhibi t was presumptively authentic wi thout
final cer tification.” The State points to the fac t tha t the documents had been provided to a ppellant prior to trial and that appellant offe red no evidenc e casting doubt on the exhibi t’s authenticity

. The State also observe s that State’s Exhi bit 13 “had Appe llant’s corr ect na me and da te of birth.” Pointi ng to the cover l etter from the data-protec tion officer in State’s Ex hibit 15, the St ate contends that the letter explained why the rec ords in that exhibi t “we re not ‘ce rtified’ in the strictest

sense of the word” (State’s lang uag e) beca use the Norfolk Consta b u l ary did not have an officia l stamp. The State observe s that the exhibi t corr ectly identified appellant by name, date of birth, sex, addre ss in Norwic h, and occupa tion as a car

penter , and that it contained the same conviction history found in State’s Ex hibit 13. The State also observe s that appellant made no complaint, with respe ct to State’s Ex hibit 15, about the notice g iven by the State to the def

ense.

The c ourt of appe als also conduc ted a ha rm ana ly sis, which is not at issue here. 2 1BRUTON — 11

T h e S t at e does not complain about the court of appea l’s ruling that State’s Ex hibit 14 is inadmissible. At oral arg ument, the State explained that this was based on appellant’ s complaint that he had not been shown State’s Ex hibit 14 until the day of the hear i n g. The State does, howeve r,
contest the court of appea ls’ holding that State’s Ex hibit 14 was neede d to link appellant to the prior convictions listed in St ate’ s Ex hibit 13.
2. Appellant ’s Argum ents Appellant’s arg uments larg ely trac k those he made to the court of appea ls, but he makes three additional arg uments. First, h e t ak es the State to task for emphasizing the importance of State’s
Ex hibit 14 at trial but now downplay ing its signific ance
. Second, he contends that the “g ood cause ” exception i n Rule 902(3) cannot apply beca use it is trig g ere d only if the trial judge “orde rs” the document to be trea ted as presumptively authentic without a final cer tification. Finally , he contends that, without State’s Ex hibits 14 and 15, there wou l d n o t h av e b een sufficie nt proof to tie State’s
Ex hibit 13 to hi m. II. ANALYSIS
A revie w of the rec ord at trial, o n appea l, and on discretionar y revie w leads us to the conclusion that the trial court and the parties have misconstrued, in various way s, the meaning and application of Rules 902(3 ) an d 902(4). Consequently , we take this opportunity to clar ify the meaning of the rule s. A. G eneral P rinciples of Construction
I n construing a court rule, we attempt to eff ectua te the plain lang uag e of the rule unless thereBRUTON — 12

are important counter

vailing considerations. Unlike the Boyk in standard for construing statutes, 2 2 2 3
the standard for construing court rules permits the consideration of extratex tual fac tors, even if the
text of the rule is not ambig uous and does not lead to absurd results. When a Texas rule of 2 4
evidenc e is patterne d on a fede ral counter p ar t , we fi nd it appropr iate to look to fede ral case s and
commentar

y for g uidance

. The comments from the Fe d er al Advisory Commi ttee are often 2 5
espec ially helpful, but w e also find it useful to e x amine how fede ral courts have been construing 2 6
the fede ral rule. We may also look at decisions in courts of other states that have a version of the 2 7 rule that is also patter

ned af ter the f eder al rule. 2 8

Nava v. State , 415 S.W .3d 289, 306 (Tex. Crim. App. 2013). 2 2 Boyk in v. State , 818 S.W .2d 782 (Tex. Crim. App. 1991). 2 3
Nava , 415 S.W .3d at 306. 2 4 Taylor v. State , 268 S.W .3d 571, 579 (Tex. Crim. App. 2008). 2 5 See McCarty v. State , 257 S.W .3d 238, 240 n.5 (Tex. Crim. App. 2008) (construing Texas 2 6 Rules of Evidence 803(1) and (2), finding a st udy of t he federa l rules “he lpful,” and r efe rring to a Fe dera l Advisory Commi ttee Notes); Hernande z v. State , 176 S.W .3d 821, 824 n.5 (Tex. Crim. App. 2005) (c onstruing T exas Rule of Evidence 404(b), citing the Fe dera l Advisory Commi ttee Notes, and finding the “inter

preta tion of fede ral rule s persua sive in interpre ting c ompara ble state rule s”); Fairow v. State , 943 S.W .2d 895, 902 n.3 (Tex. Crim. App. 1997) (construing Texas Rule of Criminal Evidence 602 and concluding that “we may rely on the Fe dera l Rules Advisory Commi ttee Notes to interpre t our rules” ).

See H ammons v. State , 239 S.W .3d 798, 804 (Tex. Crim. App. 2007) (construing 2 7 Texas Rule of Evidence 801(e) (1)( B) and stating that “fe dera l decisions provide he lpful analy sis”); Tamez v. State , 11 S.W .3d 198, 201 (Tex. Crim. App. 2000) (construing Texas Rule of Evidenc e 403 and f

inding that, “ even w hen not bound by fede ral c ourt dec isions, when the Texas Rule duplicates the F eder al Rule, g rea ter-tha n-usual def

ere nce should be g iven to the fede ral c ourt’s interpr etations”); Ree d v. State , 811 S.W .2d 582, 586 (Tex. Crim. App. 1991) (in construing state Rules of Criminal Evidence , which we re pa tterned a fter the Fe dera l Rules of Evidence , “we are g uided by fede ral c ases inter

preting the fe dera l rules, althoug h not bound there by ”). See Sc hutz v. State , 957 S.W .2d 52, 60 (Tex. Crim. App. 1997).

2 8BRUTON — 13 B. Rule 902 Ge nerally Texas Rule 902 is titled “Self-A uthentication” and it pr ovides that “[e]x trinsic evidenc e of authenticity

as a c ondition prece dent t o admissibili ty is not require d” if one of the s ubdivisions in the rule is satisfied. This r ule (including the subdivisions at issue in the prese nt case ) is modeled 2 9
afte r Fe dera l Rule of Evidence 9 02. Along with other authentica tion rules, Fe dera l Rule 902 is 3 0 desig ned to e nsure that a document that is admitted is “authe ntic rathe r than a forg ery .” The rule 3 1
addre sses situations in which “the possibili ty of fra ud, forg ery and misattribution of cer tain documents is so slight that the g ener al require ment of authenticat i o n b y extrinsi c evidenc e
. . . is dispensed with.” 3 2
Rule 902 is not the only path to deter mining authenticity , and Rules 902( 3) and (4) are not the only means of deter

mining the authenticity of fore ign documents. For eig n documents may also 3 3
be authentica ted by extrinsi c evidenc e under Rule 901. The State, howeve r, has not claimed that 3 4
it has introduced extrinsi c evidenc e of authenticity sufficie nt to satisfy Rule 901. We turn, then, to

T E X
. R. E V I D . 902. 2 9 See F E D
. R. E V I D . 902(3), ( 4), and passim , 56 F.R.D. 183, 336-37 ( 1972). 3 0 Qui Y un Chen v. Holde r , 715 F.3d 207, 211 ( 7 Cir. 2013). 3 1 t h United States v. Howard-Arias , 679 F.2d 363, 366 (4 Cir. 1982). See also F E D
. R. E V I D
. 3 2 t h 902, Advisory Comm. Notes, 56 F.R.D. 183, 337 (1972) (“pr actica l considerations reduc e the possibili ty

of unauthe nticity

to a ver y small dimension”). Qui Y un Chen , 715 F.3d a

t 211. 3 3 Id. ; Vatyan v. Mukase

y , 508 F.3d 1179, 1184 (9 Cir. 2007) ; United States v. Pluta , 176 3 4 t h F.3d 43, 49-50 (2 Cir. 1999); Howard-Arias , 6 7 9 F.2d at 366; Zenith Radio Corp. v. Matsushita d E l ec t r i c Indust rial Co. , 505 F. Supp. 1190, 1226-27 (E.D. Pa. 1980); Jordan-M eier v. State , 79 2 S.W .2d 188, 192 (Tex. App.–Houston [1 Dist.] 1990). stBRUTON — 14

Rules 902(3) and ( 4), upon which the State has re lied in this case. C. Originals vs. Cop ies The Fe dera l Advisory Commi ttee and various fede ral courts have rec og nized th at Rule 902(3) applies to orig inal fore ign public documents while Rule 902(4) applies to cer tified copies. 3 5
1. Original

s - Execution/A ttestation Under Texas Rule 902(3), an orig inal fore ign public document is “[a] document purporting
to be executed or attested in an officia l capa city by a per s o n, authorized by the laws of a fore ign country to make the execution or attestation.” Rule 902(3) also require s a “fina l cer tification,” or 3 6

an alt erna tive to the final cer tification, which we will addre ss later. The Advisory Commi ttee 3 7
Notes to the fede ral rule explain that the rule was derive d from Fe dera l Rule of Civi l P ro ce d u re 44(a) (2) “b u t i s broade r in apply ing to public documents rathe r than being limit ed to public

rec ords.” Some fede ral courts have held that the orig inal document need not be signe d or contain

3 8

an attesta tion if there is a se para te, sig ned docume nt a

ttesting to the g enuinene ss of the orig inal. 3 9
I n a case decide d befor e the Texas version of Rule 902 was adopted, the Four th Circuit reje cted, as formalistic, a claim that the officia l who executes or attests to the document must expli citly state that

R. 902 Advisory Comm. Notes, 56 F.R.D. at 338 (p ar ag raph (4)) (“docume nts provable 3 5 when pr esente d in orig inal form under para g raphs (1), (2), or (3) may not be prova ble by cer tified copy under parag raph (4)”) ; United St a t es v. F i r ishchak , 468 F.3d 1015, 1021 n.2 (7 Cir. 2006); t h United States v. Doyle , 130 F.3d 523, 545 (2 Cir. 1997); Zenith Radio Corp. , 505 F. Supp. at 1226. d
T E X
. R. E V I D . 902(3). 3 6 See id. 3 7 R. 902 Advisory

Comm. Notes, 56 F.R.D. at 338 (pa rag raph ( 3)). 3 8 United States v. Dev erso , 518 F.3d 1250, 1255-56 (11 Cir. 2008); United States v. 3 9 t h Squillacote , 221 F.3d 542, 561- 62 (4 Cir. 2000). t hBRUTON — 15

he is the officia l authorized to do so. R at h er , t he court found it sufficie nt that the document 4 0 purported to be executed in an officia l capa city by an authorized officia l. We also observe that the 4 1
rule does not require that the fore ign document or attestation bear a seal, though a seal may be 4 2 helpful in det er m i n ing whether the document purports to be an officia l document of a fore ign country

. 2. Copies - Certification of Correctness Under Texas Rule 902(4), which applies to cer tified copies o f b o t h fore ign and domestic public rec ords, a c ertified c opy is [a] copy of an officia l rec ord or repor t or entry there in, or of a document authorized by law to be recorded or filed and actua lly rec orded or filed in a public office , including data compilations in any form cer tified as corr ect by the custodian or other person authorized to make the cer tification, by cer

tificate comply ing with para g raph (1), (2), or (3) of this rule or comply ing with any statu t e o r o t h er rule presc ribed pursuant to statutory

authority

. 4 3
To the extent that it applies to copies of fore ign documents, this rule appea rs to be narr ower in scope
t h an R ule 902(3) beca

use it does not apply to all fore ign public documents but only to those that qualify as “an officia l rec ord or repor t

. . . or of a document authorized by law to be rec orded or filed and act u al l y recorded or filed in a public office .” Scholarly commentar y sug g ests that the 4 4
limit ation to official rec ords, re ports and re corde d documents may have been intended to pr eclude

Howard-Arias , 679 F.2d a t 366-67. 4 0 Id. 4 1 See T E X
. R. E V I D . 902(3). 4 2
T E X
. R. E V I D . 902(4). 4 3 See id. 4 4BRUTON — 16

using the cer

tified-copy

rule for a g overnme nt e ntity ’s purely internal rec ords, such as preliminary
repor ts, random thoughts, ideas, etc. Howeve r, t he rule express l y allows a copy to be of a “data 4 5 compilation.” I n connec tion with the first mention of that term in the Fe dera l Rules of Evidence ,

4 6
the Fe dera l Advisory Commi ttee define d the term “data compilation” to be “broa dly descr iptive of
any means of storing information other than the conventional words and fig ures in written or d o cumentar

y form

. . . . [which] includes, but is by no means limit ed to, elec tronic compu t er storag e.” A computer

printout of information stored in a n elec tronic databa se is a

copy of a da ta 4 7 compilation under Rule 902(4)

. 4 8
Rule 902(4) also require s that the copy be “cer tified as correc t” by the custodi an “or ot h er
person authorized to make the cer tification.” By “ce rtified as corr ect,” the rule means that the copy

4 9
is cer tified as a corr ect copy of the g overnme ntal rec ord; the cer tification need not attest to the truth
of the matters contained in that g overnme ntal rec ord. Also, the g overnme nt-ag ency rec ord, from 5 0
which the cer

tified copy is de rived, ne ed not itself be the orig inal document, at least so long as the

Michae l H. Gra

ham , E V I D E N C E : T E X T , R U L E S , I L L U S T R A T I O N S , & P R O B L E M S , Revised 2 4 5 n d ed., 310 (1989) (commenta ry on F E D
. R. E V I D . 902(4))

. See T E X
. R. E V I D . 902(4). 4 6
F E D
. R. E V I D
. 803, Advisory Comm. Notes, 56 F.R.D. 183, 311 (1972) ( exception (6)). 4 7 United States v. Farris , 517 F.2d 226, 228- 29 (7 Cir. 1975). 4 8 t h
Ree d , 811 S.W .2d at 585. 4 9 Doyle , 130 F.3d at 545. See also U nited States v. W

atson , 650 F.3d 1084, 1090 (8 Cir. 5 0 t h 2011) (enoug h to cer

tify that t h e documents are corr ect copies of the orig inals); United States v. W eiland , 420 F.3d 1062, 1068, 1073 ( 9 Cir. 2005) (same) ; Mele ndez-Diaz v. Massachusetts , 557 t h U.S. 305, 337 (2009) (Ke nnedy , J ., dissenting) (re fer ring to t h e “l o n g -ac cepte d prac tice of authentica ting copies of documents by means of a cer tificate from the document’s custodian stating that the copy

is acc urate ” and c iting Rule 902(4) ).BRUTON — 17

orig inal document is also a public rec ord. Also, the rule expressly provides that the person 5 1 executing the cer

tification of corr ectne ss need n ot be the custodian of the rec ords as long as he is “author ized to make the cer tification.” And Rule 902(4) does not, in connec tion wi th fore ign

5 2

rec ords, re quire a

seal of a ny sort. 5 3 Finally , the cer

tification of corr ectnes s, by which a copy is rende red cer tified, must itself satisfy Rule 902(1), (2), or (3). “The cer tificate qualifies as a public d o cu m en t , re ceiva ble as authentic when in confor mity with para g raph (1), (2), or (3).” That is, the ce rt i fi cation of 5 4

corr ectne ss is itself trea ted as an orig inal public document. As an orig inal public document, the

cer tif i ca t i o n of corr ectne ss must comply with one of the subdivisions rela ting to orig inal public documents. Subdivisions (1) a nd (2) a pply only to domestic documents, so when the c ertification
of corr ectne ss purports to be for a copy of a fore ign public rec ord, that cer tification must satisfy Rule 902(3), which has an additional final cer tification (or cer

tification alterna

tive) require ment. As we 5 5
have e x plained ea

rlier, that a dditional requireme nt will be discussed later. 5 6

3. The Docum ents

Ree d , 811 S.W .2d at 586 (ce rtified copies of judgme nts contained in pen packe ts qualified 5 1 as self- authentica ting unde r Rule 902(4))

. T E X
. R. E V I D . 902(4). 5 2 See id. ; T E X
. R. E V I D
. 902(3). But a seal would be require d if the document purported to 5 3 be a copy of a domestic public rec ord. See T E X
. R. E V I D
. 902(4) (re fer ring to cer

tificate comply ing with para g raph ( 1), (2) , or (3) of the rule ); T E X
. R. E V I D . 902(1), ( 2). R. 902 Advisory

Comm. Notes, 56 F.R.D. at 338 (pa rag raph ( 4)). 5 4 Doyle , 130 F.3d a t 545; Zenith Radio Cor p. , 505 F. Supp. at 1226. 5 5 See this opini on, footnote 37 and a ccompa ny ing te x t. 5 6BRUTON — 18

At this point, we must deter mine whether State’s Ex hibits 13 and 15 are orig inals or copies, and whether they meet the require ments that we have discussed so far

. The cer tificates of conviction
in State’s Ex hibit 13 are d at ed af t er the Dis trict Attorney ’s i nquiry to the Norwich Crown C ourt. They do not purport to be photocopies of rec ords of the Norwic h Crown Court; rathe r, they purport
to be officia l public documents that wer e executed by an office r of the Crown Court and sent to the District Attorney ’s office

. Thus, they purport to be original documents executed by someone with the authority to execute those documents. As such, they satisfy the exec u ti o n/attestation require ment of Rule 902(3). 5 7
The computer printout in State’s Ex hibit 15 appea rs to be a data compilation of information about a person’ s criminal co n v i ct i o n s from a g overnme ntal databa se. As a data compilation, the computer printout purports to be a copy rathe r than an orig inal. The letter in State’s Ex hibit 15 purports to be from a data- protec tion office r in t h e No rf olk Constabulary

. That letter specific ally
states t hat a conviction hi story has been enclose d and that the author has s t am p ed t h e d ocument 5 8
“Profe ssional Standards,” w h ic h is th e depar tment in which the author works. The computer printout
appea rs to b e a conviction history and does indeed bear a “PROFESSI ONAL STANDARDS” stamp,

so we can infer that it is the conviction history ref err ed to in the letter. Be cause a criminal conviction would ordinarily be a matter of public rec ord and the data- protec t i o n o ff icer char acte rized the computer printout as a “convic tion history ,” the computer printout purports to be a copy of official

rec o rd s
. T h e data- protec tion office r’s letter also indicates implicitl y that he has the authority to

I t mig ht be ar g ued that the doc uments are also data c ompilations of public recor ds. We 5 7 need not a ddress whe ther they could qualify

as ce rtified copie s under suc h a theor y . This statement is found in the unreda cted version of the letter, which was State’s Ex hibit 5 8 12, which the tria l judge had bef ore him at the time he made his ruling

.BRUTON — 19

disclose the documents to which the letter ref ers. Given these circ umstances, the computer printout satisfies the re quirements of Rule 902( 4) that we have disc ussed so far

. D. F inal Certification
1. What t he Rul e Requires
W e n o w turn to the “fina l cer tification” require ment found in Rule 902(3). When a p ar t y seeks to admit a fore ign public document, it must be acc ompanied by a “fina l cer tification.” For an orig inal fore ign public doc ument, this require ment must be satisfied with respe ct t o the ex ecution
of the document or the attestation. For a cer tified copy , th e re q u i re m en t must be satisfied with
respe ct to the ce rtification of c orre ctness. Texas Rule 902(3) re quires a “ final ce rtification” a s follows:
A document

. . . acc ompanied by a final cer tification as to the g enuinenes s of the signa ture and officia l position (A) of the executing or attesting person, or (B ) of any fore ign officia l whose cer tificate of g enu i n en es s of signa ture and officia l position rela tes to the execution or attestation or is in a chain of cer tificates of g enuinene ss of signa ture and officia l position rela ting to the execut i o n o r attestation. A final cer tification may be made by a secr etar y of embassy or leg ation, consul g ener al, consul, vice consul, or consular ag ent of the United States, o r a diplomatic or consular officia l of the fore ign country assig ned or acc redited to the United States. 5 9
The rule provides alterna tives to this final cer

tification require ment, but for now, we examine 6 0
whether the final c ertifica

tion requireme nt was met in this case.
2. What t he Fin al Certification Must S ay The final cer

tification must direc tly or indirectly vouch for the g enuinene ss of the signa ture

T E X
. R. E V I D . 902(3). 5 9 See id. 6 0BRUTON — 20

and official position of the officia l who executes or attests to the foreig n public document. This 6 1
is the second of two basic require ments articula ted by some fede ral courts for authentica ting fore ign documents: (1) there must be som e indi cation t h at t h e d o cu ment is what it purports t o be, and (2) there must be some indication that the official vouching for the document is who he purports to be. 6 2
3. Who Mu st Make the Fin al Certification The rule say s, “A final cer tification may

be made by

a sec reta ry of emba ssy or l eg ation,

co nsul g ener al, consul, vice consul, or consular ag ent of the United States, or a d i p l o m at i c o r consular officia l of the fore ign co u ntry assig ned or acc redited to the United States.” A casua l 6 3
observe r who is unfami l i ar with the rule might be confuse d reg arding whether the word “may ” in the s entenc e is permissive wit h respe ct t o who m ay make the final certifica ti o n
. That i s, does t he phrase “may be made” si mply signify that these ag ents may make the cer tification but others may also, or does t h i s p hrase signify that these ag ents are the only ag ents authorized to make the final

cer tification? A revie w o f t h e Fe dera l Advisory Commi ttee Notes and the case law establishes bey ond any

doubt that it is in fac t the latter. The Advi sory Commi ttee Notes to Fe dera l Rule of Civil Procedur e 44 (upon which Rule 902(3) was based) explain that the rule contemplates the final cer tification being made by “a United
States fore ign service office r
. . . or a diplomatic or consular office r of the fore ign country assig ned

See id. ; Star

s ki v K i r z h n ev , 682 F.3d 51, 53 (1 Cir. 2012); Dev erso , 518 F.3d at 1256; 6 1 st Squillacote , 221 F.3d at 562; Jordan-M aier , 792 S.W .2d at 191. By “indirec tly ,” we mean the chaincer tificate me thod in the rule, discussed in more detail below. Dev erso , 518 F.3d a t 1256; Squillacote , 221 F.3d a t 562. 6 2
T E X
. R. E V I D . 902(3). 6 3BRUTON — 21

or acc redited to the United States.” The fede ral case s observe that the person who makes the final 6 4

cer tification must be a diplomatic or consular ag ent from the list contained in Rule 902(3) (or Rule 44(a) (2))

. At least one Texas court of appea ls has also rec og nized this to be true. The idea

6 5 6 6
behind t his “fina l cer

tification” method see m s t o be that courts and parties in this country may be unfamiliar with the official working s of another country but can consult the United States Depa rtment of State (or the appropr iate U.S. Consulate), which presumably possesses expertise with
respe ct to the fore ign country

. The require d proce ss of having a diplomatic or consul ar officia l associate d with one’s own country verify the status of an officia l in a fore ign country for the purpose of authentica ting a fore ign document is sometimes called “the require ment of diplomatic or consular

F E D
. R. C I V
. P. 4 4 , Advisory Comm. Notes, Notes on 1966 amendme nts (subdivision 6 4 (a) (2))

. Qui Y

un Chen , 715 F.3d at 211 (Rule 902(3) “requires cer tification by U.S. or fore ign 6 5 diplomatic officia ls”); Starski , 682 F.3d at 53 (under R u l e 9 02(3), final cer tification must be “by cer tain officia ls enumer ated in the rules”) ; Dev erso , 518 F.3d at 1256 (re g arding Rule 902(3), “the rules require that one of a specifie d g roup o f fo re i g n officia ls must issue a final cer tification”); Squillacote , 221 F.3d at 562 (same) ; Pluta , 176 F.3d at 49 (ce rtification under Rule 902(3) must be m ad e “by a diplomatic or consular officia l of the United States or the fore ign country ”); Un i t ed States v. Garate-Ve rgara , 942 F.2d 1543, 1553 (11 Cir. 1991) (Rule 902(3) “re quires that fore ign t h documents be cer

tified by a consular ag ent of the United States”); United States v. Serrate , 534 F.2d 7,10 (1 s t C i r. 1 976) (under Rule 44(a) (2), “The final cer tification must be made by a ‘diplomatic officia l of the United States or [a] diplomatic or consular officia l of the fore ign country assig ned or acc redited to the United States.’”) ; United States v. Leal , 509 F.2d 122, 126 (9 Cir. 1975) (same) ; t h Un i t ed S t a tes v. Pache co-Lovio , 463 F.2d 232, 233 (9 Cir. 1972) (under Rule 44(a) (2), forei gn t h officia l rec ord is to be acc ompanied by final cer tification “by any of sever al officia ls with the United States Depa

rtment of State in the for eig n country ”). Jordan-M

eier , 792 S.W .2d at 191 (docume nt is authentica ted u n der Texas Rule 902(3) 6 6 if, among other things, i t i s ac companied by a final cer tification that “is made by a diplomatic or consular of

ficial” ).BRUTON — 22

leg alization of foreig n public documents,” and an international convent i o n wa s d eveloped as an 6 7
alterna tive to this require ment with a streamlined method of authentica tion. The S t at e does not 6 8
claim to meet the r equire ments of the applica ble interna

tional convention. 6 9
Rule 902(3) does allow for a chain of cer tifications that culminate in a final cer tification by

a diplomatic or consular officia l. The Advisory Commi ttee Notes to F eder al Rule 44 descr ibe this
proce ss: Under this method, it is sufficie nt if the orig inal attestation purports to have been issued by an authorized person and is acc ompanied by a cer tificate of another fore ign officia l whose cer

tificate may in turn be followed by that of a fo re i g n officia l of highe r rank. The proce ss continues until a fore ign officia l is rea ched as to whom the United States fore ign service officia l (or diplomatic or consular office r of the fore ign country assig ned or acc redited to the United States) has adequate information upon

See H A G U E C O N V E N T I O N A B O L IS H IN G T H E R E Q U IR E M E N T O F L E G A L I S A T I O N F O R F O R E I G N 6 7 P U B L I C D O C U M E N T S , p re ca t o ry clause (Oc tober 5, 1961) (“leg alisation” from orig inal chang ed to “leg alization”). See id. See also United States v. Regne r , 677 F.2d 754, 760 n.3 (9 Cir. 1982) (sug g esting 6 8 t h that “complianc e with Rule 902(3) will shortly no longe r be nece ssary beca use the United States has rec ently ratified by

trea ty the Convention A bolishing the Requireme nt of L eg alization for For eig n Public Documents”).

Texas Rule 902(3) allows the final cer tification to be dispensed with “whe never both the 6 9 United States and the fore ign country in which the officia l rec ord is located are parties to a trea ty or convention that abolishes or displaces such require ment, in which case the rec ord and the attestation shall be cer

tified by the means provided in the trea ty or convention.” Caselaw indic at es t hat the United States is a party to the Hag ue Convention ref err ed to above. See Regne r , 677 F.2d at 760 n.3; United States v. Nunez-Beltra n , 8 3 Fe d. R. Evid. Serv. (Callag han) 225, 2010 U.S. Dist. L EXI S 76029, *9 (S.D. Cal. J uly 26, 2010). The Hag ue Convention provides for cer tification by means of an “apostille.” H A G U E C O N V E N T I O N , Arts. 3, 4. The apostille must be expli citly titled as such, using the Fr ench word “apostille.” Id. , Art. 4; Nunez-Beltran , 2010 U.S. Dist. L E XI S at *9. This document bear s a serial number link ed t o a ce n t ral arc hive in the issuing state for verific ation purposes. Nunez-Beltran , 2010 U.S

. Di s t

. L EXI S at *9. An apostille must be attache d to the document to certify in acc ordanc e with the convention, see Construction Drilling v. Crofts , 63 F. Supp. 2d 509, 515 (D.N. J

. 1 999) and Nunez-Beltran , 2010 U.S. Dist. L EXI S at *9-11, unless otherwise exempted, see H A G U E C O N V E N T I O N , Art. 3. No apostille was attache d to State’s Ex hibits 13, 14, and 15.BRUTON — 23

which to base a “f

inal cer tification.” 7 0
4. No Final

Certification i n th is Case What is evident from this discussion is that State’s Ex hibits 13, 14, and 15 all lacke d a final

cer tification. None of these exhibi ts wer e acc ompanied by a cer tification by a di

p l o mat ic or consular official

as re quired by

Rule 902(3).
E. Good Cause Rule 902(3) provides two situations in which a final cer tification may be dispensed with. 7 1
The fir st, colloquially

known as the “ g ood cause exception,” provides a s follows:
I f rea sonable opportunity has been g iven to all parties to investiga te the authenticity and acc urac y of officia l documents, the court may , for g ood cause shown, order that they be trea ted as presumptively authentic without final cer tification or permit them to be evidenc ed by

an atteste d summary

with or without final cer

tification. 7 2
This portion of the rule actua l ly contains two require ments: (1) that the parties have been g iven a

rea sonable op p o rt unity to investiga te t he authenticity and accur acy of t he documents, and (2) that
g ood cause has been shown to trea t the document as presumptively au t h en tic without final

cer tification. The State has chosen not to contest the court of appea ls’s authenticity holding wit h
respe ct to State’s Ex hibit 14 beca use there is some indication that appellant may not have been g iven adequate notice of the document. We a g ree with the State that the rec ord is suf ficient to suppor

t a conclusion that appellant was g iven sufficie nt oppor tunity to investiga

te the authenticity of State’s
Ex hibits 13 and 15. So we must now a ddress whether g ood cause has bee n shown with respe ct to

R. 44 Advisory

Comm. Notes (subdivisi on (a) (2))

. 7 0 We have a lrea dy

discussed the sec ond situation in footnote 69. 7 1
T E X
. R. E V I D . 902(3). 7 2BRUTON — 24

those two exhibi ts.
How do we measure g ood cause ? I s it g ood cause to believe the documen t is authentic despite the absenc e of a final cer tification, or is it g ood cause for failing to obtai n a fi nal

cer tification? The First Court of Appea ls and the Second Circuit have indicated that the former may be true. Wit h respe ct to the “g ood caus e” inquiry , the First Court of Appea ls focuse d on the evidenc e tending to show that the documents we re a uthentic: The third p age o f t he exhibi t is a letter from the centr al reg ister, stating that their entry shows the person was con v i cted of sexual abuse of children and fra ud. The six th pag e states that the person convicted, Klaus Dieter J ordan , is marrie d to a woman named Carmen Her nandez and resides in G uatemala City

. The information on the documents is consistent with the evidenc e. F or example, appe llant stated on the rec ord that his name is Claus J ordan- Maier, and his wife' s name is Carmen. She also testified at trial. They lived in Guatema la for 9-10 y ear s. The State also produce d an identification expert who compar ed appellant' s fing er prints with those in the Ger man rec ords, and said that they wer e the same. We hold that the State established g ood cause

. 7 3
The Second Circuit found that the party objecting to the documents at issue in its case had nine y ear s
to challeng e their au t h en t i city

. The court conclude d that the party ’s delay was a sufficie nt basis 7 4
for f inding g ood cause to treat the doc uments as pre sumptively authentic. 7 5
The weig ht of authority , howeve r, indicates that “g ood cause ” must be g ood cause for failing to obtain a final c ertifica

tion. The Fe dera l Advisory Commi ttee explicitly

took this posi tion: Although the amende d rule will g ener ally fac ilitate proof of fore ign officia l rec ords, it i s rec og nized that in some situations it may be difficult or even impossibl e to satisfy the basic require ments of the rule. There may be no United States consul in a p a rticular fore ign country ; the fore ign officia ls may not cooper ate; peculi a r it ie s ma y

Jordan-M

aier , 792 S.W .2d at 192. 7 3 Raphaely I

nt’l v. W aterman Steamship Corp. , 972 F.2d 498, 502 ( 2 Cir. 1992). 7 4 d Id. 7 5BRUTON — 25

exis t or arise here afte r in the law or prac tice of a fore ign country

. There fore the final sentenc e of subdivision (a) (2) provides the court with discretion to admit an attested copy of a rec ord without a final cer tification, or an attested summary of a rec ord with or without a final ce rtification. This relaxation shoul d be perm itted only when it is shown that the party has been unable to satisfy the b a sic requireme nts of the amende d rule despite his reasonable e fforts. 7 6
Other f eder al cour

ts ha ve also taken the position that good c ause r equire s a showing that the par ty proff ering the evidence was unable to satisfy the rule’s require ments despi t e reasonable eff orts. 7 7
Some of these courts have acknow ledg ed that a findi n g of g ood cause may more rea dily be made when the opposing party has cast no serious doubt as to authenticity afte r having a fair chanc e to examine the document, but the proff ering party must still sug g est some circ umstance approximating the situations envisioned by the Advisory

Commi ttee. 7 8
The State has g iven no rea son for failing to obtain a final cer tification and has not sug g ested
that it made any attempt to contac t an appropr iate diplomatic or consular off ic ia l a b o u t authentica ting the documents in State’s Ex hibits 13 and 15. I n fac t, the rec ord supports the infere nce that the State failed to attempt to contac t the appropr iate officia l beca use the prosec utors misunderstood the finalcer tification require ment. But the State’s ignor ance of Rule 902(3)’ s require ments is not a leg itimate

excuse. F . DISPOSITION

R. 44 Advisory

Comm. Notes (subdivision (a)(2) ) (c itations omi tted, emphasis adde d). 7 6 Starski , 682 F.3d at 54; United States v. De Jongh , 937 F.2d 1, 4-5 (1 Cir. 1991) (re ly ing 7 7 st upon Advisory Comm. Notes to Rule 44 and italicizi ng passag e we italicized above) ; Leal , 509 F.2d at 126; Francis v. C

aribbean Transport , 882 F. Supp. 2d 275, 281 (D. P uerto Ri co 2012); United States v. Y

ousef , 175 F.R.D. 192, 193-94 (S.D.N.Y. 1997) (re cog nizi ng that there is “a dear th of case law” on the issue of g ood cause but finding the Advisory Commi ttee Notes to be insightful). De J ongh , 937 F.2d a t 4-5; Francis , 882 F. Supp. 2d at 280-81. 7 8BRUTON — 26

We affir m the judgme nt of the cour t of appe als. Deliver ed: April 30, 2014 Publis h