Sunday, August 16, 2009
Great Wall Of Hearsay: New Jersey Appellate Court Finds Recorded Recollection Was Improperly Introduced As An Exhibit
A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.
A key but often forgotten part of this hearsay exception is the last part as was the case in the recent opinion of the Superior Court of New Jersey, Appellate Division, in Business Computer Resources, Inc. v. Great Wall of Tinton Road, Inc., 2009 2426344 (N.J.Super.A.D. 2009).
In Great Wall, Business Computer Resources, Inc., a computer services and supply company, sued defendant, Great Wall of Tilton Road, Inc., i/p/a Great Wall Chinese Food, a neighboring business in the strip mall both shared, alleging it had sustained property damage as the result of defendant's negligently-caused fire. During trial, over defendant's objection, the judge admitted into evidence a computer-generated spreadsheet, prepared by plaintiff's principals, of inventory, fixtures and other personal property lost or damaged in the fire. After trial, the jury awarded the plaintiff $52,000 in damages, to which the judge added pre-judgment interest and allowable costs.
The defendant subsequently appealed, claiming, inter alia, that the spreadsheet was improperly admitted. The appellate court noted that an initial potential reason that the spreadsheet might have been inadmissible under New Jersey Rule of Evidence 803(c)(5) was that the witness who substantially prepared it was never asked whether she needed the spreadsheet to testify because she lacked “insufficient present recollection” of the damaged items and their worth. The court noted, however, that its "review of the record convince[d it] that had the proper predicate questions been posed, in all likelihood the spreadsheet would have qualified as “recorded recollection” under N.J.R.E. 803(c)(5). It contained over 600 line items on nineteen pages, and thus it was unlikely that [the witness] could have possessed a present memory of every item and its value."
The real problem, however, was that the spreadsheet was admitted into evidence as an exhibit over the defendant's objection. As the last part of New Jersey Rule of Evidence 803(c)(5) makes clear, this action was improper. Nonetheless, the appellate court found that the erroneous admission of this exhibit as well as another exhibit containing hearsay was harmless error and thus affirmed.