Rule 44.Proof of an official record

Reporter’s Notes—1995 Amendment: Rule 44(a) is amended for conformity with a 1991 amendment to Federal Rule 44(a). Differences between the Vermont and federal rules reflecting Vermont practice are not affected. See Reporter’s Notes to V.R.C.P. 44. The reasons for the amendment are those given in the federal Advisory Committee’s Note: “The amendment to paragraph (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States, and adds a generic term to describe governments having a relationship with the United States such that their official records should be treated as domestic records. “The amendment to paragraph (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Moreover, it does not affect the former practice of attesting the records, but only changes the method of certifying the attestation. “The Hague Public Documents Convention provides that the requirement of a final certification is abolished and replaced with a model apostille, which is to be issued by officials of the country where the records are located. See Hague Public Documents Convention, Arts. 2-4. The apostille certifies the signature, official position, and seal of the attesting officer. The authority who issues the apostille must maintain a register or card index showing the serial number of the apostille and other relevant information recorded on it. A foreign court can then check the serial number and information on the apostille with the issuing authority in order to guard against the use of fraudulent apostilles. This system provides a reliable method for maintaining the integrity of the authentication process, and the apostille can be accorded greater weight than the normal authentication procedure because foreign officials are more likely to know the precise capacity under their law of the attesting officer than would an American official. See generally Comment, The United States and the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 11 HARV. INT’L L.J. 476, 482, 488 (1970).”

Reporter’s Notes: This rule is substantially identical to Federal Rule 44, with one modification based on prior Vermont practice. Rule 44(a)(1) provides a simpler procedure for authenticating domestic public records when an official publication thereof is unavailable than does the federal rule. Following the pattern of 12 V.S.A. §§ 1692, 1694- 1698 (now superseded), the rule requires only the attestation of the officer having custody, if the record is one kept within the state. If the record is one kept in another state or territory of the United States, however, the attested copy must be accompanied by the officer’s sworn certificate that he is the custodian and that the record is one required to be kept. Under the federal rule, a record from any domestic jurisdiction must be accompanied by the certificate of another officer that the attesting officer has custody. The provision of the rule for proof by official publication is consistent with 12 V.S.A. § 1699 (now superseded). Rule 44(a)(2), providing for proof of foreign records, is identical to the federal rule. It is more complicated than prior Vermont practice, under which foreign records were treated like domestic records; but, in providing that foreign records may be attested by a person authorized to make the attestation rather than by the custodian, the rule accords more nearly with the realities of officialdom in many countries. See Advisory Committee’s Note to 1966 Amendment of Federal Rule 44, 3A Barron & Holtzoff, Federal Practice and Procedure 268 (Supp. 1969). The rule requires a final certification as to the signature and position of the attesting person or of another foreign official who may have certified the authenticity of the attestation directly or as a participant in a chain of successive certifications. The purpose is to permit the maker of the final certification to attest to the authority of a foreign official that he recognizes without the need for independent investigation as to foreign law of procedure. If circumstances make compliance with the formalities of the rule impossible, the court has discretion to waive the formalities when the parties have had reasonable opportunity to satisfy themselves as to the genuineness of the document. Under Rule 44(b) lack of record may be proved by a statement that no record has been found after diligent search. The statement is to be certified in the manner required for a record of the type sought. Rule 44(c) preserves other methods of proof provided by law. For example, 12 V.S.A. § 1693 provides for proof of United States weather observation records. See also 12 V.S.A. § 1701 (Uniform Photographic Copies of Business and Public Records as Evidence Act); §§ 1702-1704 (Missing Persons Act). Common-law methods of proof, as for example by direct testimony of the witness through whom a document is introduced, may also be used. See State v. White, 70 Vt. 225, 39 A. 1085 (1898). Finally, various federal statutes and treaty provisions deal with proof of official documents. See 5 Moore, Federal Practice § 44.01; Advisory Committee’s Notes to 1966 Amendment to Federal Rule 44, supra, at 269.