Suppose that the state wants to introduce the defendant’s phone records, in order to show that he called the victim in violation of a DVPO. The state subpoenas the records, and the phone company provides them, along with an affidavit from an appropriate employee stating that they are business records.
Armed with the records and the affidavit, will the state be able to introduce the record over the defendant’s objections (1) that the records cannot be authenticated, and (2) that the records are hearsay not within any exception?
The authentication objection should be denied. Even without the affidavit, the “distinctive characteristics” of the records, such as their appearance and structure, references to the defendant as the subscriber, and the like might be sufficient to authenticate them. See N.C. R. Evid. 901(b)(4); Fry v. State, 885 N.E.2d 742 (Ind. Ct. App. 2008) (sufficient showing that cell phone records were authentic where they were produced in response to law enforcement’s request; contained a list of call times and durations; and “contain[ed] multiple references to the account holder’s name, and identifying labels of the corresponding cell phone companies;” there were “hundreds of reference points from which it could be determined that they are the purported records for the requested cell phone numbers”). The affidavit removes all possible doubt on the authentication issue, and the affidavit may properly be considered because the authenticity of a document is a preliminary question to which the rules of evidence do not apply. See generally N.C. R. Evid. 104(a) (stating that preliminary questions are to be determined by the court without regard to the rules of evidence).
The hearsay objection presents a more difficult issue. The state may argue that the records fall within the exception in N.C. R. Evid. 803(6), which applies to certain records “kept in the course of a regularly conducted business activity.” The foundational requirements for the exception must be “shown by the testimony of the custodian or other qualified witness.” The problem for the state is the word “testimony.” The affidavit, while a sworn statement, does not appear to be “testimony,” meaning that it cannot establish the necessary foundation. (By way of contrast, the federal business records rule, Fed. R. Evid. 803(6), expressly provides that the foundation may be supplied by testimony or by a written certification from an appropriate witness.) Notwithstanding the plain language of the rule, however, there is some support in our appellate case law for the use of an affidavit to satisfy the foundational requirements of the business records exception. See In re S.W., 175 N.C. App. 719 (2006) (cited approvingly in In re S.D.J., 192 N.C. App. 478 (2008)). But as authority for the use of an affidavit, In re S.W. cites Chamberlain v. Thames, 131 N.C. App. 705 (1998), a civil case that allowed an affidavit to be used under the specific provision regarding the use of affidavits to establish the foundation for the admission of medical and public records in N.C. R. Civ. P. 45(c). Because Chamberlain is a civil case applying a particular rule of civil procedure, it may not be a strong precedent for the use of affidavits in criminal cases.
Assuming arguendo that the records cannot be introduced under the business records exception, the state might argue that they can be introduced under the residual exception in Rule 803(24). That exception applies to statements not falling within any other exception but with “circumstantial guarantees of trustworthiness” sufficient to warrant the admission of the statements. To my knowledge, no North Carolina appellate case addresses this argument, but it seems plausible that a business record established as such by affidavit is as trustworthy as one established as such by live witness testimony. If the state wishes to pursue this argument, it must give the defendant advance written notice of its intent to offer the records under the residual exception.
As an aside, the Confrontation Clause does not prohibit the use of an affidavit in the way described above. Neither the affidavit, nor the phone records themselves, are testimonial. See, e.g., United States v. Yeley-Davis, __ F.3d __, 2011 WL 167249 (10th Cir. Jan. 20, 2011).
Any controversy can be avoided by having the defendant stipulate to the records’ admissibility, or by procuring the attendance of an appropriate witness from the phone company. See State v. Logner, 297 N.C. 539 (1979) (records “identified and duly authenticated by qualified officials” of the telephone company properly admitted). Anyone who is familiar with the system by which the records are created and maintained would be an appropriate witness. The threshold for familiarity may be fairly low, allowing a wide range of phone company employees to serve as appropriate witnesses. See generally Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 225 n. 480 and accompanying text. Indeed, in In re S.D.J., supra, a person who was not even an employee of the business in question, but who was familiar with the business as a result of her frequent contact with it, was deemed an appropriate witness. For an out-of-state case discussing a more than adequate witness, see State v. Myers, 795 N.E.2d 77 (Ohio Ct. App. 10 Dist. 2003) (“[The phone company employee] demonstrated sufficient familiarity with the operation of [company]’s business and the circumstances under which the telephone records were prepared, maintained, and retrieved. She testified as to how information regarding a telephone call is captured by the switch, a computer server. [The witness]’s testimony detailed how the computerized records of telephone calls are maintained in the normal course of business, which can be reduced to paper records if requested by court order or subpoena. Further, she testified regarding the procedure employed to prepare a written report of a telephone call. [The witness]’s knowledge was sufficient to base her testimony that the telephone records at issue were what they purported to be and were made in the ordinary course of business.”).
In some cases, the subscriber might be an appropriate sponsoring witness. For example, if the state sought to introduce the victim’s, rather than the defendant’s, phone records, the state might be able to have the victim authenticate the records. The subscriber would seem to be a “witness with knowledge” under N.C. R. Evid. 901(a)(1), who could testify along the lines of “yes, these are my records. They show my name and number and calls I remember making, and Verizon sent them to me at my request.” Although the subscriber normally won’t be able to establish that the records are business records for hearsay purposes, even if no hearsay exception can be found, the records might be admissible for corroboration or other non-hearsay or limited purposes.