Admissibility of Evidence - Authentication of Foreign Records and Documents for Use at Trial
An official publication of a foreign record, or an entry in a foreign official record, is self-authenticating, when admissible for any purpose. [1]
A copy of a foreign record, or an entry in a foreign official record, may also be self-authenticated if (a) the copy is stated to be a true and accurate copy of the original which is in the custody of the attestor, and (b) the attested copy is accompanied by (1) a final certification as to the genuineness of the signature and official position of the attesting person, or (2) a final certification of any foreign official whose certificate of genuineness of signature and official position (i) relates to the attestation, or (ii) is in a chain of certificates of genuineness of signature and official position relating to the attestation. [2] The final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. [3]
If a reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, admit an attested copy without the final certification, or permit the foreign official record to be evidenced by an attested summary with or without a final certification.[4]
A written statement that after diligent search, no record or entry of a specified kind was found to exist in the foreign records, is admissible as evidence that the records contain no such record or entry when the statement is authenticated in compliance with the requirements for authentication of a copy of a foreign record.[5]
Authentication may be in Accordance with The Apostille Convention.[6]
In 1981, the United States became a party to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents.[7] The records of foreign countries that are signatories to the Convention may be proved by an apostille certificate, requiring only one signature as prescribed by the Convention. These records are admissible without the necessity of compliance with CPLR 4542.[8]
The Apostille Convention facilitates the circulation of public documents executed in one State party to the Convention and to be produced in another State party to the Convention by replacing the formalities of a full legalization process with the issuance of an Apostille, also called Apostille Certificate or Certificate. [9]
The Convention applies only to public documents. These are documents emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server); administrative documents; notarial acts; and official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. The main examples of public documents for which Apostilles are issued in practice include birth, marriage and death certificates; extracts from commercial registers and other registers; patents; court rulings; notarial acts and notarial attestations of signatures; and academic diplomas issued by public institutions. Apostilles may also be issued for a certified copy of a public record.[10]
The Convention does not apply to documents executed by diplomatic or consular agents nor to administrative documents dealing directly with commercial or customs operations. [11]
Apostilles may only be issued by a Competent Authority designated by the State from which the public document emanates. The Apostille is placed by the Competent Authority on the public document itself or on an allonge. The Apostille should conform as closely as possible to the Model annexed to the Convention. In addition, each Competent Authority is required to keep a Register in which it records the Apostilles it has issued.[12]
The only effect of an Apostille is to certify the authenticity of the signature, the capacity in which the person signing the document has acted, and where appropriate, the identity of the seal or stamp which the document bears. The Apostille does not relate to the content of the underlying document itself.[13]
The Hague Conference on Private International Law maintains an Apostille Section on its website with links to competent authorities[14] for every country, and a status table indicating the countries where the Convention is in force.[15] The U.S. Department of State Authentications Office has information on its website about the process.[16] For a current list of the Contracting States go to the link in the footnote.[17]
[1] CPLR 4542 (a)
[2] CPLR 4542 (a)
[3] CPLR 4542 (b)
[4] CPLR 4542 (a)
[5] CPLR 4542 (c); See Brill v. Brill, 1961, 10 N.Y.2d 308, 310, 222 N.Y.S.2d 321, 178 N.E.2d 720 (1961) (certificates of Mexican officials that they searched the files of the court since the year 1954 but that no divorce action instituted by Joseph Brill against Ruby Brill had been registered was adequate documentary evidence that no divorce was ever obtained.)
[6] See https://assets.hcch.net/docs/b12ad529-5f75-411b-b523-8eebe86613c0.pdf for the full text of the Convention
[7] Opened for signature Oct. 5, 1961, 33 U.S.T. (part 1) 883, T.I.A.S. No. 10072 (entered into force for U.S., Oct. 15, 1981)
[8] See Estate of McDermott, 1982, 112 Misc.2d 308, 309, 447 N.Y.S.2d 107, 108 (Sur. 1982) (documents were properly in evidence, where they were authenticated in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents although not authenticated in accordance with the provisions of CPLR 4542).
[9] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[10] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[11] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[12] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[13] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[14] https://www.hcch.net/en/instruments/conventions/authorities1/?cid=41
[15] See https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
[16] See http://travel.state.gov/content/travel/en/legal-considerations/judicial/authentication-of-documents/notarial-and-authentication-apostille.html
[17] https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
An official publication of a foreign record, or an entry in a foreign official record, is self-authenticating, when admissible for any purpose. [1]
A copy of a foreign record, or an entry in a foreign official record, may also be self-authenticated if (a) the copy is stated to be a true and accurate copy of the original which is in the custody of the attestor, and (b) the attested copy is accompanied by (1) a final certification as to the genuineness of the signature and official position of the attesting person, or (2) a final certification of any foreign official whose certificate of genuineness of signature and official position (i) relates to the attestation, or (ii) is in a chain of certificates of genuineness of signature and official position relating to the attestation. [2] The final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. [3]
If a reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, admit an attested copy without the final certification, or permit the foreign official record to be evidenced by an attested summary with or without a final certification.[4]
A written statement that after diligent search, no record or entry of a specified kind was found to exist in the foreign records, is admissible as evidence that the records contain no such record or entry when the statement is authenticated in compliance with the requirements for authentication of a copy of a foreign record.[5]
Authentication may be in Accordance with The Apostille Convention.[6]
In 1981, the United States became a party to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents.[7] The records of foreign countries that are signatories to the Convention may be proved by an apostille certificate, requiring only one signature as prescribed by the Convention. These records are admissible without the necessity of compliance with CPLR 4542.[8]
The Apostille Convention facilitates the circulation of public documents executed in one State party to the Convention and to be produced in another State party to the Convention by replacing the formalities of a full legalization process with the issuance of an Apostille, also called Apostille Certificate or Certificate. [9]
The Convention applies only to public documents. These are documents emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server); administrative documents; notarial acts; and official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. The main examples of public documents for which Apostilles are issued in practice include birth, marriage and death certificates; extracts from commercial registers and other registers; patents; court rulings; notarial acts and notarial attestations of signatures; and academic diplomas issued by public institutions. Apostilles may also be issued for a certified copy of a public record.[10]
The Convention does not apply to documents executed by diplomatic or consular agents nor to administrative documents dealing directly with commercial or customs operations. [11]
Apostilles may only be issued by a Competent Authority designated by the State from which the public document emanates. The Apostille is placed by the Competent Authority on the public document itself or on an allonge. The Apostille should conform as closely as possible to the Model annexed to the Convention. In addition, each Competent Authority is required to keep a Register in which it records the Apostilles it has issued.[12]
The only effect of an Apostille is to certify the authenticity of the signature, the capacity in which the person signing the document has acted, and where appropriate, the identity of the seal or stamp which the document bears. The Apostille does not relate to the content of the underlying document itself.[13]
The Hague Conference on Private International Law maintains an Apostille Section on its website with links to competent authorities[14] for every country, and a status table indicating the countries where the Convention is in force.[15] The U.S. Department of State Authentications Office has information on its website about the process.[16] For a current list of the Contracting States go to the link in the footnote.[17]
[1] CPLR 4542 (a)
[2] CPLR 4542 (a)
[3] CPLR 4542 (b)
[4] CPLR 4542 (a)
[5] CPLR 4542 (c); See Brill v. Brill, 1961, 10 N.Y.2d 308, 310, 222 N.Y.S.2d 321, 178 N.E.2d 720 (1961) (certificates of Mexican officials that they searched the files of the court since the year 1954 but that no divorce action instituted by Joseph Brill against Ruby Brill had been registered was adequate documentary evidence that no divorce was ever obtained.)
[6] See https://assets.hcch.net/docs/b12ad529-5f75-411b-b523-8eebe86613c0.pdf for the full text of the Convention
[7] Opened for signature Oct. 5, 1961, 33 U.S.T. (part 1) 883, T.I.A.S. No. 10072 (entered into force for U.S., Oct. 15, 1981)
[8] See Estate of McDermott, 1982, 112 Misc.2d 308, 309, 447 N.Y.S.2d 107, 108 (Sur. 1982) (documents were properly in evidence, where they were authenticated in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents although not authenticated in accordance with the provisions of CPLR 4542).
[9] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[10] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[11] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[12] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[13] See https://assets.hcch.net/docs/80d0e86f-7da8-46f8-8164-df046285bcdd.pdf
[14] https://www.hcch.net/en/instruments/conventions/authorities1/?cid=41
[15] See https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
[16] See http://travel.state.gov/content/travel/en/legal-considerations/judicial/authentication-of-documents/notarial-and-authentication-apostille.html
[17] https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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