holding the erroneous admission of evidence under the business records exception “does not warrant reversal absent a showing that substantial rights of the party were affected”
How later courts described this case
- holding the erroneous admission of evidence under the business records exception “does not warrant reversal absent a showing that substantial rights of the party were affected”
Written by the judges who cited it.
The opinion
SABERS, Justice
(concurring in result).
I would affirm the trial court and hold that under these circumstances, he did not abuse his discretion in admitting these business records.
As indicated, these records were authenticated by a written certificate of authentication signed by the Associate Registrar of Records and the Associate Dean of Science of McMaster University in Ontario, Canada, the school where Brown claimed he received his degree.
At issue in United States v. Leal, 509 F.2d 122 (9th Cir.1975) was the propriety of *766 the trial court’s admission of certain business records from a Hong Kong hotel during the defendant’s trial for certain drug offenses. As in this case, the exhibits were admitted without foundation testimony from their custodian but with the benefit of an affidavit by the hotel manager describing the contents of the records, attesting himself as their official custodian, certifying they were prepared under his authority and further certifying they constituted records prepared in the normal course of the hotel’s business. The trial court admitted the documents under the business records exception to the hearsay rule codified in the Federal Business Records Act. Under that act, just as under SDCL 19-16-10, a requisite foundation for admission of business records must be laid though the testimony of someone who is sufficiently familiar with the practices of the business to testify that the records are made in the regular course of business and, thus, to verify their authenticity.
In upholding the admission of the records in Leal , the Ninth Circuit observed that:
The admission of documents under the business records exception to the hearsay rule, as codified in 28 U.S.C.A. § 1732 , the Federal Business Records Act, is permissible in a criminal trial and this court has held that 28 U.S.C.A. § 1732 does not violate the right of a criminal defendant under the Sixth Amendment to confront the witnesses against him.
Leal, 509 F.2d at 127 . As to the lack of foundation testimony for admission of the records, the circuit court noted that the government had no power to compel the hotel employees to attend trial and testify, and, therefore, had followed the procedure for authentication of foreign official records, i.e. authentication on the basis of the affidavit of the hotel’s manager. The court held that in view of the fact that none of the hotel employees could be subpoenaed to testify, the government’s action in obtaining the authenticating affidavit of the hotel manager was justified under the circumstances.
Given the unique circumstances of the present case, it would seem that a similar result would be in order. Brown’s academic records were in the custody of a private university in Canada, a close, neighboring country but a foreign country nonetheless. Thus, testimony authenticating the records could not be procured by the normal route of a subpoena. Accordingly, state obtained only the written authentication of the records from the Associate Registrar and Associate Dean of Science of the University. The Registrar certified himself as keeper of the records, seal and files of the University and certified the records he provided as true and correct copies of Brown’s transcript and other communications concerning Brown. To this certification, the Registrar affixed the official seal of the University. The Associate Dean of Science certified the Associate Registrar as keeper of the records, files and seal of the University, that the Registrar was duly qualified by law to that office, and that full faith and credit should be given to his official acts in all courts of record. The Associate Dean also signed his certification under the seal of the University. In view of the fact that neither of these officials could be subpoenaed to testify in this matter, it would appear these certifications provided the trial court in this case with the same indicia of trustworthiness and reliability provided by the affidavit of the hotel manager in Leal .
In In re Japanese Electronic Products, supra, the Third Circuit Court of Appeals set forth a comprehensive analysis of the issue of whether the proponent of business record evidence under Federal Rule of Evidence 803(6) (identical to SDCL 19-16-10) could meet his burden without the benefit of testimony from the custodian of the records or another qualified witness. Holding that he could, the circuit court made the following pertinent observations:
Despite the reference in the Rule to a qualified witness, the trial court held ‘that the testimony of the custodian or other qualified witness is not a sine qua non of admissibility in the occasional case where the requirements for qualification as a business record can be met by *767 documentary evidence, affidavits, or admissions of the parties, i.e., by circumstantial evidence, or by a combination of direct and circumstantial evidence.’ [Zenith Radio Corp. v. Matsushita Electric Industrial Co.] 505 F.Supp. [1190] at 1236 [ (D.C.Pa.1980) ]. This interpretation of Rule 803(6) is not challenged here by the defendant. It seems, in any event, consistent with the spirit of the Rules.... It would make little sense to require live witness testimony every time a business record is offered when, from the other materials open for the court’s consideration, it can make the required finding to its own satisfaction. The court held that in the absence of live witness testimony as to regularity of the activity and its recordation, the proponent ‘must show regularity of practice in some precise and explicit manner, either by external evidence or from the documents themselves plus surrounding circumstances.’ Id. Placing the burden of establishing regularity of practice on the proponent was also proper_ Finally, turning to the Rule 803(6) proviso excluding business records when ‘the source of information or the method or circumstances of preparation indicate lack of trustworthiness,’ the court held that the burden of showing such untrust-worthiness was on the party opposing admission. Id. Placing this burden on the party opposing admission was correct. (emphasis added).
In re Japanese Electronic Products, 723 F.2d at 288.
Applying these principles in the instant case would appear to reveal no abuse of discretion in the trial court’s admission of the records into evidence. The records were certified by the Registrar1 of the University under the seal of the University to be true and correct copies of Brown’s academic records. The records included written requests by Brown for copies of his transcripts and a copy of a notarized letter written by the Associate Dean to Brown in January 1989 (over a year before trial) advising him that he lacked two six-unit courses for completion of a four year general degree. The copies of Brown’s transcripts bear out the statements in the letter showing in chronological order, his failure of various courses and failed years in 1958-59 and 1962-63. Thus, the records themselves appear to provide sufficient circumstantial evidence of the regularity of the record keeping involved. Given the absence of any showing or claim of untrust-worthiness in the records, it would appear there was no abuse of discretion by the trial court in allowing their admission into evidence even in the absence of the foundation testimony generally required by SDCL 19-16-10. Finally, it seems the majority goes out of its way to find an abuse of discretion when, at the same time, it concludes that Brown admitted the fact that he was never awarded a bachelor’s degree in geology. Therefore, I would affirm this proper use of discretion by the trial court.
Justice AMUNDSON joins this special writing.