Tuesday, September 20, 2011
To Summarize: 10th Circuit Notes That Rule 1006 Doesn't Provide An Exception To Rule Against Hearsay
Federal Rule of Evidence 1006 provides that
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
As the recent opinion of the Tenth Circuit in United States v. Irvin, 2011 WL 3833812 (10th Cir 2011), makes clear, however, Rule 1006 only provides parties with a (sort of) way around the Best Evidence Rule; it provides no exception to the rule against hearsay.In Irvin,
Jeffrey Miller and Hallie Irvin were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, Miller and Irvin were each convicted on several of the charges and sentenced.
Miller and Irvin thereafter appealed, claiming, inter alia, that the district court improperly allowed the prosecution to admit Exhibits 1-2, which were initially offered by the government unde rFed.R.Evid. 1006 as a summary of several boxes of 'loan files' pertaining to the allegedly fraudulent home sales." Specifically, Miller and Irvin claimed that "the loan files purportedly summarized in Exhibit 1–2 constituted hearsay that was not shown to qualify for any exception to the prohibition on hearsay evidence." In addressing this argument, the Tenth Circuit noted that
When this same challenge was raised before the district court, the government attempted to show the loan files were admissible under the business records exception [to the rule against hearsay] established by Fed.R.Evid. 803(6). Pursuant to Rule 803(6), business records are admissible despite their hearsay nature if the records' custodian, or another qualified witness, testifies the records (1) were prepared in the normal course of business; (2) were made at or near the time of the events recorded; (3) were based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) are not otherwise untrustworthy....The government offered [James] Sparks as the witness qualified to make these foundational showings. Sparks, however, testified the loan files were largely maintained by various title companies for whom he had not worked and under circumstances of which he had no personal knowledge. Furthermore, Sparks could not state whether the loan files were made or kept by the title companies in the regular course of their businesses. He also indicated that various documents within the loan files had been removed, destroyed, or otherwise modified. His testimony, therefore, was insufficient to establish the admissibility of the loan files as business records.
According to the Tenth Circuit, this meant that the exhibits were imporperly admitted because
The materials summarized by Rule 1006 evidence must themselves be admissible because a contrary rule "would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay."