ANCIENT WRITING

An original document affecting the transfer of real property, which can be admitted as evidence in a lawsuit because its aged condition and its location upon discovery sufficiently establish its authenticity.

Under common law, an ancient writing, sometimes called an ancient document, could be offered as evidence only if certain conditions were met. The document had to be at least thirty years old, the equivalent of a generation. It had to appear genuine and free from suspicion. For example, if the date of the document or the signatures of the parties to it appeared to have been altered, it was not considered genuine. When found, the document must have been in a likely location or in the possession of a person who would logically have had access to it, such as a deed found in the office of the county clerk or in the custody of the attorney for one of the parties to the writing. An ancient writing must also have related to the transfer of real property, for example, a will, a deed, or a mortgage. When all these requirements were met, an ancient writing was presumed to be genuine upon its presentation for admission as evidence without any additional proof.

Today various state rules of evidence and the federal rules of evidence have expanded the admissibility of ancient writings. An ancient writing can now be offered as evidence if its condition does not suggest doubt as to its authenticity, if it is found in a likely place, and if it is at least twenty years old at the time it is presented for admission into evidence.

Some states still adhere to the requirement that a document be at least thirty years old before it comes within the ancient writing exception to the hearsay rule. A few states recognize ancient documents only if, in addition to these basic requirements, the person seeking the admission of the ancient writing has taken possession of the property in question.

An ancient writing is admissible in a trial as an exception to the rule that prohibits hearsay from being used as evidence in a trial. In a case where no other evidence exists, the legitimacy of the writing must be considered if the case is to be determined on its merits. The probability that such a document is trustworthy is determined by its condition and location upon discovery. These factors permit a court and a jury to presume the authenticity of an ancient writing.