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Florida Supreme Court Streamlines Process for Admission of Business Records Under the Hearsay Exception

Author: Amy Chambers

Guest Editor: Jeremy Freedman

October 5, 2020 2:06pm

The Florida Supreme Court recently issued an opinion in Jackson v. Household Finance Corporation III, 236 So. 3d 1170 (Fla. 2d DCA 2018) resolving a split in authority regarding the amount of proof necessary to apply the business records exception to the hearsay rule.

At trial, a 25-year employee and assistant vice president of HSBC Holdings was called to lay foundation for admission of HSBC’s business records.  The witness was asked the following questions:

(1) “Do you have access to the records maintained by HSBC with respect to the [subject] mortgage…and…[a]re you familiar with the business practices of HSBC” (2) Is it the regular business practice of HSBC to keep records and record transactions? (3) Do the persons who prepare the records have personal knowledge of the events they are recording? (4) Are the records made at the time the event occurred? (5) Did HSBC prepare and maintain these records with respect to the subject loan?”[1]

Notably, these questions follow the requirements of Florida Statute Section 90.803(6), which sets forth Florida’s requirements to establish a hearsay exception for business records, as follows:  (1) that the record was made at or near the time of the event, (2) that it was made by or from information transmitted by a person with knowledge, (3) that it was kept in the ordinary course of a regularly conducted business activity, and (4) that it was a regular practice of that business to make such a record.

At trial, the defendant objected to the admission of the business records on hearsay grounds, arguing that the witness failed to testify as to how he gained personal knowledge of HSBC’s business records and practices.  The trial court overruled the objection, and entered the documents into evidence.  The Second District Court of Appeal affirmed, and the defendant appealed to the Florida Supreme Court.

On review, the Florida Supreme Court addressed the conflicting holding by the Fourth District Court of Appeal in Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016).  Maslak involved a similar situation where a bank employee offered testimony regarding each element required by the business records exception.  The objecting party in that matter argued the witness simply “regurgitated the magic words, but was unfamiliar with, and had no knowledge of, how the records were created and kept.”[2]  The Fourth DCA agreed, and held that the failure to provide “specific details of the bank’s procedures for inputting payment information into their systems and how the payment history was produced” rendered the witness’s testimony insufficient to lay a proper foundation for admission of the bank’s business records.[3]

The Florida Supreme Court rejected the Maslak holding, stating that the plain language of the business records exception statute did not require factual specificity as to how the records were compiled, maintained, or utilized.  The Court explained that “a minimal testimonial foundation” was “desirable in terms of fairness and the efficient administration of justice.”[4]

The Court further explained that once the proponent lays the ground for admission, the burden shifts to the opposing party to prove the records were untrustworthy or should not be admitted for some other reason.[5]  The Court determined that the witness in the Jackson case met the foundational elements required by the business records exception per Section 90.802(6), shifting the burden to the defendant, but that the defendant waited until after the documents were received into evidence to question the witness regarding the basis for his knowledge.

Takeaway

The Florida Supreme Court’s ruling in Jackson should reduce the tactical use of hearsay objections to the admission of business records as the opinion provides clear instructions on how to properly authenticate business records into evidence.  Practitioners should refer to this opinion when preparing their witnesses to authenticate business records so that their testimony will stand up to cross-examination.

 

[1] Jackson, supra., 236 So. 3d at *2-3.

[2] Maslack, supra., 190 So. 3d at pp. 658-659.

[3] Id. at p. 659.

[4] Jackson, supra, 236 So. 3d at *5.

[5] Id.

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