Monday, June 24, 2013
None of Your Business: 2nd Circuit Finds Late Notice Didn't Preclude Self-Authenticatiom Under Rule 902(11)
Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for
A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Meanwhile, Federal Rule of Evidence 902(11) provides that the following item is self-authenticating and does not require extrinsic evidence of authentication to be admitted:
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
In Rom, John Rom appealed from his convictions for (1) conspiracy to commit immigration fraud; and (2) making a false statement on a document required by immigration laws. One of the grounds for Rom's appeal was
that the district court abused its discretion in admitting seven pages of redacted records from a checking account in Rom's name and a joint savings account he shared with his ex-wife because the government's late disclosure of the records—two days before trial, but only one day after the government received the records—violated...Federal Rule of Evidence 902(11).
The Second Circuit disagreed, concluding that Rule 902(11)
provides that a domestic business record that meets the requirements of Rule 803(6)(A)-(C) is self-authenticating if accompanied "by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court."...Thus, "Rule 902(11) extends Rule 803(6) 'by allowing a written foundation in lieu of an oral one.'"...If a party seeks to certify a business record pursuant to Rule 902(11) rather than by providing live testimony pursuant to Rule 803(6)(D), it "must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them."...This notice requirement "is intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration." Fed.R.Evid. 902(11) advisory committee's note. Here, Rom had five full days between when the government disclosed the records and when the records were admitted into evidence, which was sufficient time to verify the records' certification with his own bank. In those five days, Rom raised no concerns that the bank records were improperly certified or that the foundation was otherwise improper.