Wisconsin Lawyer
Vol. 83, No. 9, September 2010

Historically, absent a stipulation or some other specific statutory provision providing for automatic admissibility of nonpublic business records, a foundation witness was necessary for the admission of such records. Although hearsay exceptions for business records¹ and health-care provider records have existed for decades,² and provisions existed pertaining to self-authenticating public records,³ there existed no general rule providing for admission of certified business records or the authentication of these records by means other than through a record custodian’s testimony.

If a party’s case required introducing telephone, Internet, utility, or other types of business records, the lack of a self-authentication provision, combined with the fact that many custodians of such records are based out-of-state or even in other nations, required the party to incur substantial expense to have the appropriate record custodian appear for trial or other evidentiary hearings. Although attorneys could reach stipulations regarding records whose accuracy was not in dispute, this often did not occur until the eve of trial, by which time the expenses were already largely incurred. Late stipulations, or the absence of a stipulation at all, resulted in a great deal of inconvenience and financial cost for record custodians and evidence proponents alike.

New rules governing the admission of domestic and foreign business records took effect in Wisconsin more than four years ago, but they are not well known within the bar and judiciary. As a court commissioner, the author hears testimony from record custodians and gets requests for continuances because of the unavailability of record custodians whose appearances could have been avoided entirely through the use of the new rules. At a recent presentation to court commissioners and judges, Marquette University Law School Professor Daniel Blinka described the rules as “not as well known as they should be.” Indeed, it appeared that many of the judicial officers present were not aware of them. This article explains the rules and encourages their use in appropriate circumstances.

The Changing of the Rules

In 1999, recognizing the need for a “uniform treatment of business records, and to save the parties the expense and inconvenience of producing live witnesses for what is often perfunctory testimony,” the Federal Rules of Evidence Advisory Committee solicited comments on proposed changes to the federal rules allowing for the admission of certified business records through self-authenticating declarations.⁴ The proposal amending Federal Rule of Evidence 803(6) and creating Federal Rule of Evidence 902(11) and 902(12) was adopted by the U.S. Supreme Court on April 17, 2000.⁵ The Wisconsin Supreme Court subsequently approved a petition to assimilate the new federal rules into the Wisconsin Rules of Evidence, effective Jan. 1, 2006.⁶

The petition made changes to two Wisconsin statutes. First, the long-existing business-record hearsay exception was modified to allow for business records to be introduced through certified documents that meet the standards of the new self-authentication provisions for domestic and foreign records. The text of the business-record hearsay exception contained in Wis. Stat. section 908.03(6), as amended, is as follows:

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02(12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.”

Second, domestic records can now be self-authenticated. The newly created Wis. Stat. section 909.02(12) reads:

“(a) The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under s. 908.03(6) if accompanied by a written certification of its custodian or other qualified person, in a manner complying with any statute or rule adopted by the supreme court, certifying all of the following:

“1. That the record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

“2. That the record was kept in the course of the regularly conducted activity.

“3. That the record was made of the regularly conducted activity as a regular practice.

“(b) A party intending to offer a record into evidence under par. (a) must provide written notice of that intention to all adverse parties and must make the record and certification available for inspection sufficiently in advance of the offer of the record and certification into evidence to provide an adverse party with a fair opportunity to challenge the record and certification.”

Third, a self-authentication provision for foreign records was created at Wis. Stat. section 909.02(13). That subsection is basically the same as the domestic provision (see above), except that paragraph (b) contains an additional requirement that the declaration “must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed.”

Although Federal Rule of Evidence 902(12) contains a clause limiting its application to civil cases, the Wisconsin rule contains no similar limitation. The Federal Rules of Evidence Advisory Committee Notes clearly indicate that the rule was limited to civil cases solely because the federal criminal code already contained a provision allowing for the admission of certified foreign business records.⁷ Because Wisconsin had no similar rule, the Wisconsin Supreme Court agreed that the new section should not be limited to civil cases.

How the New Rules Work

Applying the rule is really quite simple. The proponent of the business record sought to be introduced must obtain the record, along with a certification by a person with knowledge of those matters attesting that 1) the record was made at or near the time of the occurrence of the matters described in the record, 2) the record was kept in the course of regularly conducted activity, and 3) the record was made of the regularly conducted activity as a regular practice. The certification contains the same sort of foundational information that would be required to allow for admission of the record if the record custodian were testifying in person.

After obtaining the record and certification, the proponent must provide written notice to all adverse parties that the proponent intends to offer the record into evidence. The proponent also must make the record and certification available to the adverse parties with enough notice to allow the adverse parties a fair opportunity to challenge the record and certification. Generally, attorneys should send the record and certification to opposing attorneys with the written notice of intent to use the record at trial. The record can be introduced into evidence unless it is established that the record lacks trustworthiness or the certification is insufficient.

Special Considerations in Criminal Proceedings

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”⁸ The changes to the business-record rules were passed in the wake of the decision in Crawford v. Washington,⁹ in which the U.S. Supreme Court announced a new test for determining whether evidence violates the Confrontation Clause. Under Crawford, if evidence is produced “with an eye toward trial,”¹⁰ it is testimonial evidence that implicates the Confrontation Clause.

Jason Hanson, U.W. 1998, is a court commissioner in Dane County Circuit Court, presiding over family, small claims, criminal, traffic, ordinance, and mental-health cases. He previously served as an assistant district attorney, a deputy district attorney, and an administrative law judge.

In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court found that the admission of a certified crime laboratory report in a criminal prosecution, while permitted under Massachusetts law, would not meet the standard hearsay exception and violated the Confrontation Clause because the report was “prepared specifically for use at petitioner’s trial.”¹¹ The Crawford decision recognized that business records are not testimonial “by their nature.”¹² These decisions are not at odds with one another. Courts have long held that the business-record hearsay exception does not apply to records created in anticipation of litigation. Regularly collected business records are considered reliable enough to warrant a hearsay exception precisely because they are kept for purposes other than litigation. It follows that they would not be deemed testimonial for Confrontation Clause purposes if they meet the standards of the business-record exception.

Melendez-Diaz is consistent with the result reached seven years earlier in State v. Williams, in which the Wisconsin Supreme Court found that a crime laboratory report did not fall within the business-record hearsay exception because such reports are “prepared primarily to aid in the prosecution of criminal suspects.”¹³ In adopting the rules discussed in this article, the court included a comment to the effect that the rules should not be seen as changing the Williams analysis regarding records of an investigation conducted for the particular purpose of litigation.¹⁴

In State v. Doss, the Wisconsin Supreme Court analyzed the use of a different statute pertaining to the admissibility of certain bank records.¹⁵ In addition to finding that bank records are nontestimonial, the court held that the use of the record custodians’ affidavits to gain admission of the records did not violate the Confrontation Clause because the affidavits were intended to “fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt.”¹⁶ In a discussion pertaining to the notice requirements of the statute at issue in Doss, the court observed that the statute was comparable and closely related to the new business-record rule, which had not been adopted at the time of the trial court proceedings in Doss.¹⁷ Thus, it is reasonable to believe that the court would generally interpret the provision described in Doss and the new rule similarly.

At first blush, the Doss decision’s analysis that the foundational affidavits “do not supply substantive evidence of guilt” appears to conflict with the U.S. Supreme Court’s subsequent rejection, in Melendez-Diaz, of an exception to the Confrontation Clause analysis for evidence that is from sources not directly involved in accusing a criminal defendant of wrongdoing. The distinction is that Melendez-Diaz was about admitting facts found specifically for the purposes of prosecution, while Doss merely allowed a foundational affidavit as an evidentiary prerequisite to the admission of data collected as an ordinary business practice. Indeed, the Melendez-Diaz decision itself recognized that a clerk’s certificate authenticating an official record for use as evidence “was traditionally admissible” at common law.¹⁸

Perhaps the situation is somewhat analogous to the evidentiary rule that a trial judge is not bound to the rules of evidence in ruling on preliminary questions of admissibility.¹⁹ The U.S. Supreme Court found that rule to be consistent with Confrontation Clause protections under the pre-Crawford paradigm.²⁰ In other words, there is a strong argument that while the records themselves must meet certain standards to withstand constitutional scrutiny, the record custodian’s certification itself does not implicate the Confrontation Clause.

Lastly, although the Massachusetts statute struck down in Melendez-Diaz did not contain a “notice-and-demand” feature, the U.S. Supreme Court spoke approvingly of such statutes adopted by other states. Those provisions allow “the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.”²¹ The purpose of the Confrontation Clause is to allow a criminal defendant to test the proof offered by the prosecution. The business-record rules contain notice requirements similar to the notice-and-demand provisions described above. Accordingly, while it is always important to proceed with caution, particularly in the introduction of evidence against an accused person, the use of the business-record rules in criminal proceedings appears to be on solid ground.

An Affidavit By Another is Not the Same

A published 2010 Wisconsin Court of Appeals decision, Palisades Collection LLC v. Kalal, involved a business-record affidavit.²² The debt-collection complaint filed by Palisades alleged that Jackie Kalal failed to satisfy a credit card account with Chase and that Palisades subsequently acquired the debt from Chase. The circuit court permitted Kalal’s husband, Ralph, to intervene as a codefendant. Palisades subsequently submitted a summary judgment motion, supported by the affidavit of Marie Oliphant, who identified herself as “a duly authorized representative of [Palisades], the owner of this account through purchase.” The affidavit alleged that attached statements were “true and correct [copies] of the credit card statements that were mailed to Jackie C. Kalal on a monthly basis.” In addition, Oliphant averred the following:

“[I]n my capacity as authorized representative, I have control over and access to records regarding the account of the above referenced Defendant(s), further, the original owner maintained records pertaining to its business; that the records were prepared in the ordinary course of business, at or near the time of the transaction or event, by a person with knowledge of the event or transaction, that such records are kept in the ordinary course of the creditor’s business and that of the Plaintiff; and that based upon my review of the business records of the original creditor, I have personally inspected said account and statements regarding the balance due on said account.”

The Kalals opposed summary judgment but submitted no factual materials contradicting Palisades’ position. When the circuit court granted summary judgment in favor of Palisades, the Kalals appealed, claiming that the affidavit was insufficient to justify summary judgment. The court of appeals agreed, finding that the affidavit contained no facts showing that Oliphant had personal knowledge of how the credit card statements were prepared or whether they were prepared in the ordinary course of Chase’s business. Although the affidavit was in the form described by Wis. Stat. section 908.03(6), it “does not suffice in the absence of an averment that [Oliphant] holds or has held a position from which one could reasonably infer that she has some basis for personal knowledge of how Chase prepared the accounts,” and it was, therefore, inadmissible.²³ In other words, while Oliphant and Palisades may have had control over the records acquired from Chase, there was no basis shown for Oliphant’s conclusions regarding Chase’s production of the records. Because the affidavit was insufficient to establish a proper foundation for the admission of the records, the court of appeals found that Palisades failed to establish a prima facie case for summary judgment, and the court of appeals reversed the circuit court. Interestingly, while the Wisconsin Supreme Court granted the Wisconsin Bankers Association’s request to file an amicus brief in support of a petition for review, the supreme court ultimately declined to review the case.

In this writer’s view, Palisades does no violence to the usefulness of the business-record rules. In some respects, the Palisades case is not about the rules at all. Rather, the case simply reiterates the standard business-record exception requirement that the record custodian, whether appearing in person or filing an affidavit, have personal knowledge of the foundational statements in the affidavit. In cases with successors in interest, like the Palisades case, this issue could likely be resolved by having the original creditor tender an appropriate affidavit with the sold debt.

Time Is On Your Side

In considering the rulemaking petition, the Wisconsin Supreme Court debated whether to include in the rules a requirement that evidence proponents provide any certified documents they intend to use by a specific amount of time before trial. The court ultimately decided to retain the federal version’s flexible requirement that the proponent “make the record and certification available for inspection sufficiently in advance of the offer of the record and certification into evidence to provide an adverse party with a fair opportunity to challenge the record and certification.”

In this respect, the rule is different from the health-care provider record rule, which requires a 40-day disclosure period.²⁴ The two rules also are distinguishable in that the health-care provider rule exempts health-care provider records from subpoena under most circumstances, while the general rule discussed in this article does not preclude either party from issuing a subpoena to the record custodian.

In adopting a more pliable standard for the new rule, the court recognized that the reasonableness of a time period might vary greatly from case to case. It will depend on the nature, size, disputability, and character of the record and on the role of the record in each party’s presentation. Of course, early disclosure is always the best policy, because it allows more time for the opposing party to review the record and certification, thereby reducing the risk that a court would find that a fair opportunity had not been afforded.

Conclusion

Although no legal rule is a panacea, Wisconsin’s adoption of these provisions of the Federal Rules of Evidence should be a useful tool for litigators in appropriate cases. Attorneys who use the rules’ procedures should save a great deal of time and expense for themselves, their clients, and record custodians.

Endnotes

Wisconsin Lawyer