Rule 803(6): Please Hold for the Next Available Representative…

A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.

What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up.

Unless you just graduated from law school within the last year or two, you probably remember learning that in North Carolina courts (unlike in federal court) business records can only be introduced through the live, sworn testimony of a records custodian, and not through an affidavit. [Jessie Smith has written a good summary of what counts as a “business record,” and who qualifies as a “records custodian” for those records. Jeff Welty considered how this rule applied to authenticating phone records back in 2011, and in 2013 Shea Denning explained the one clear exception we had to the rule, which allowed for the use of affidavits with certain hospital records.]

That used to be the rule – but it’s not anymore. North Carolina’s Rule 803(6) was amended effective October 1, 2015, and it now allows all business records to be authenticated by a record custodian either through live testimony “or by affidavit or by document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The records must be from a “nonparty” (phone company, bank, school, hospital, etc.) and the proponent of the evidence must give “advance notice” of his or her intent to authenticate the records by affidavit. This change to Rule 803(6) was mentioned briefly in a blog post back when it happened in 2015, but it may have slipped under the radar of criminal attorneys who don’t routinely handle document-heavy cases like white-collar crime.

Even before the 2015 revision, a few appellate cases had begun allowing the use of affidavits anyway. See In re S.W., 175 N.C. App. 719, disc. review denied, 360 N.C. 534 (2006) (records admitted based on affidavit by record custodian); State v. Isaac, 205 N.C. App. 468 (2010) (unpublished) (upholding exclusion of records because no foundation was offered, but stating that an affidavit could have been used for that purpose). After the statutory change, our appellate courts have confirmed that an affidavit is indeed sufficient. E.g., Owen v. Davis, 808 S.E.2d 520 (2017) (unpublished) (school records admitted based on teacher’s affidavit as records custodian).

Sometimes the single biggest challenge in getting your case ready for trial is the surprisingly difficult task of trying to coordinate all your witnesses’ schedules and availability. So when a company based in another state tells you that their next available representative can only come to court on alternating third Tuesdays of months which don’t have an “r” in them… it doesn’t exactly make your job any easier. Allowing authentication by affidavit helps ease that burden.

But before you start tearing up all your trial subpoenas and begin drafting affidavits and notices instead, let’s run through a few issues and make sure we’re on solid ground.

1) Are you sure this rule applies to phone records?

Yes – printouts or downloads of phone records are definitely considered “business records,” and have been for quite a long time. E.g., State v. Hunnicutt, 44 N.C. App. 531 (1980) (“microfiche reader printouts” of call logs were admissible as business records).

2) But isn’t there some sort of Crawford/confrontation/hearsay problem here?

No – this doesn’t raise the same concerns that might come up with other notice/affidavit provisions like DWI notice and demand statutes, because the Supreme Court has explained that “by their nature” business records are not testimonial. See Crawford v. Washington, 541 U.S. 36, 56 (2004); State v. Melton, 175 N.C. App. 733 (2006). The records are still hearsay, yes, but Rule 803(6) is the exception which specifically allows for that. And to the extent that the affidavit itself might be considered hearsay because it’s an out-of-court statement from the record custodian regarding the contents of the records, that’s a non-issue because the affidavit is only being used for the limited purpose of establishing the admissibility of the records. That means it’s covered by Rule 104(a), which says that the other rules of evidence do not apply in making an admissibility determination.

The federal rules of evidence have allowed authentication of business records through a very similar “certification” provision for many years, so if this practice were going to be successfully challenged on confrontation/hearsay grounds I think we would have already seen it.

3) So all I need is an affidavit and then the records are definitely coming in?

Well, no. The affidavit only authenticates the records. To get them admitted you still need to show that they are relevant, not unfairly prejudicial, and not independently objectionable for some other reason like impermissible character evidence. But those are the same criteria you would need to meet even if you were using a live witness.

Remember that you also need to give “advance notice” to the opposing party. The rule doesn’t set a specific deadline for doing that, so I would cautiously say the earlier the better.

4) That’s all very interesting, but I don’t really see any records like this in most of my cases.

Are you sure? How about the pawn shop transaction paperwork in your false pretenses case? Or credit card receipts from the bar in your DWI case? Anything that qualifies as a business record can potentially be authenticated through the use of an affidavit, without the need for a live witness. And the term “business records” applies to a wide variety of documents and information that could come up in your cases. See, e.g., State v. Oakley, 788 S.E.2d 683 (N.C. App. 2016) (NPLEX drug purchase logs); State v. Clark, 242 N.C. App. 141 (2015) (DMV records); State v. Jackson, 229 N.C. App. 644 (2013) (GPS data from electronic monitoring device worn by defendant on post-release supervision); State v. Sneed, 210 N.C. App. 622 (2011) (NCIC printout regarding a stolen firearm); State v. McLean, 205 N.C. App. 247 (2010) (photo of defendant in police database); State v. Hewson, 182 N.C. App. 196 (2007) (“event report” for 911 call and response); State v. Raines, 362 N.C. 1 (2007) (detention center incident reports); State v. Forte, 360 N.C. 427 (2006) (SBI chain of custody documents).

Let me back up just a little and clarify that my goal here is not to encourage you to avoid calling a witness from the business to testify – especially if you need that witness to explain or interpret something in the records which goes beyond what a police officer or another lay witness would be able to say about them. That’s particularly true for phone records (as Shea previously wrote about here), where you may need testimony from a more knowledgeable witness – possibly even an expert witness – if you plan to go into complex, technical details about location tracking and tower coordinates.

But authentication by affidavit is a good option to consider when Ma Bell won’t take your call, or when the records custodian is already booked and your trial date can’t be continued. It is also helpful for all those cases where you would prefer to have the information in evidence, but can’t justify the burden and expense of bringing in a live witness given the nature of the offense. For example, in a routine misdemeanor larceny case, you may not be able to justify the cost of flying a witness in from California to authenticate records showing the timestamp and contact information for a Craigslist post offering to sell the stolen property. But if you could get those records authenticated and introduced into evidence for little more than the cost of stamp…why not?

I wrote this post because it seemed like the new(ish) affidavit option was still not being used very frequently at the trial level, so I just wanted to make sure criminal attorneys were aware of it. If you’re already using it successfully (or if you’ve tried to use it but run into obstacles), please let me know in the comments.

If you need a template for a records custodian affidavit, one is available in MS Word format here.