Documents, Ancient

Ancient Documents

Contrary to the title of this article, ancient documents as referred to in the Florida and Federal Evidence Codes are not limited to archeological findings or hieroglyphics. Under the codes, ancient documents encompass, but are not limited to, the following documents which are over 20 years old: letters, records, contracts, maps, title papers, and certificates. Rule 90.803(16) of the Florida Evidence Code and Rule 803(16) of the Federal Rules of Evidence provide that statements in such documents qualify as exceptions to the hearsay rule. Thus, any documents admitted as ancient documents may be presented to the fact finder to prove the truth of the matter asserted in those documents. Trial lawyers in commercial and products liability cases seeking to introduce documents that can be proven to be authentic and more than 20 years old will, therefore, be able to use statements in the documents to prove their cases. Nevertheless, before a document becomes admissible under the ancient document rule, the trial attorney must establish that the document is genuine or that it is what it purports to be. Ancient documents will be considered real if they are found where expected and if they appear bona fide and not suspicious. See, Fla. Stat. §90.901; Fed. R. Evid. 901(b)(8); see also, Clark v. Cochran, 85 So.250 (1920); Drake v. City of Ft. Lauderdale, 227 So.2d 701 (Fla. 4th DCA 1969); and Yates v. Bass Ranch, Inc., 379 So.2d 710 (Fla. 4th DCA 1980). Federal Evidence Code, Rule 901(b)(8), deems an ancient document to be authentic if it is established that the paper, ” … is in such condition as to create no suspicion concerning its authenticity, … and was in a place where it, if authentic, would likely be, and … has been in existence 20 years or more at the time it is offered.” Unlike the Federal Rule on Authentication of Ancient Documents, the Florida Evidence Code does not specifically address this point; however, under Florida Common Law a document is considered an authentic ancient paper if it can be established that it is at least 30 years old, found in a usual place and not suspicious in appearance. See Clark, 85 So. at 250 and Drake, 227 So.2d at 709. There does not seem to be any logical basis for the 30-year Florida Common Law rule. Moreover, the Florida cases setting this requirement are all pre-code cases. Additionally, the twenty-year time period requirement for admissibility of ancient documents is supported by Fla. Stat. §92.07, which permits a judgments and decrees of record that are at least twenty years old to be admissible to prove the facts contained therein, and Fla. Stat. §92.08, which similarly allows for the admissibility of deeds and powers of attorney greater than 20 years old for the facts contained therein. Thus, a very persuasive argument may be made in a Florida State Court that an inconspicuous looking document that is 20 years old, and found in a place where it appears to belong, should be deemed authentic as a matter of law. You should cite Federal Rule of Evidence 901(b)(8) in support of this position together with the Florida Hearsay exception on ancient documents, Rule 90.803(16) and the Clark case, 85 So. at 250. If you encounter an evidentiary problem involving ancient documents while preparing for trial, you should review the cases cited in this article, the applicable Florida and Federal Rules, and be prepared to call a witness during the trial that will be able to establish the age of the document, its genuineness, and its condition. Once you have established that the document is over 20 years old and authentic, it should be received in evidence by the court without complication. Since issues involving ancient documents are not commonly addressed by most trial judges, you should be prepared to submit a concise memorandum of law setting out the applicable rules and case law on the issues so as to assist the court in reaching the correct decision.