Category: Evidence

Illinois Business Records: Getting Them In at Trial

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I’ve learned from painful experience to always have evidentiary foundation and authenticity considerations at the forefront of my trial preparation plan. 

I’ve also found that having a working knowledge of Illinois Supreme Court Rule 236 (SCR 236), as well as Federal and Illinois Evidence Rules 803(6) and 902(11) (hearsay exception and self-authentication rules for business records, respectively) is essential to preparing for and proving my client’s breach of contract case at trial.

Bank of America v. Land, 2013 IL App (5th) 120283 serves as a good case law illustration of the business records rule.  

The plaintiff bank sued to foreclose a mortgage and later moved for summary judgment.  The bank supported its summary judgment motion with a bank officer’s affidavit who testified that she reviewed the bank’s books and records of the mortgage holders, reviewed the borrowers’ payment history and certified a payment history attached to the affidavit. Land, ¶ 5. 

The trial court granted the bank’s motion awarding it money damages of over $100,000 and a judgment of foreclosure.  Land, ¶ 6.  Defendant appealed.

Result: Trial Court affirmed.  The bank’s supporting affidavit meets the requirements of SCR 236.

Reasoning:  The defendant’s chief argument on appeal was that the bank officer’s supporting affidavit was inadmissible hearsay since the underlying mortgage didn’t originate with the plaintiff and because the affidavit relied on a third party’s (another mortgage company) loan records. 

The Court rejected the argument and held that the affidavit met the requirements of SCR 236, which codifies the hearsay exception for business records (a link to the Rule’s text follows this post).

– SCR 236 provides that any record of a monetary transaction is admissible as evidence of that transaction if the record is made in the regular course of business and the business’s regular practice was to make a record of a transaction at or near the time of the transaction;

– The rationale for the rule is that business records exist to aid in the proper transaction of business and so records are “useless for that purpose unless accurate.” 

– Lack of personal knowledge by the maker may affect the evidence’s weight, but not its admissibility;

A third party’s records can also be admitted where that third party is authorized to generate the record on behalf of the offering party.

¶ 13.

Applying these rules, the Court found that plaintiff satisfied SCR 236 requirements where the affiant/bank officer testified

(i) that she was familiar with the bank’s business records creation and maintenance practices,

(ii) that the records pertaining to the defendants were made at or near the time of the occurrences giving rise to the records,

(iii) were made by individuals with personal knowledge of the information contained in the business record, and

(iv) the records were kept in the regular course of the bank’s business.  ¶ 13.

Take-aways: Illinois litigants now have a slew of evidence rules – SCR 236, IRE 803(6), IRE 902(11) – at their disposal that streamline the process of getting business records into evidence at trial and eliminate many of the logistical and hearsay headaches that trial practice formerly entailed.  

The case underscores the importance of knowing the rules for business record admissions at trial and on summary judgment.  A key holding of Land is that the business records relied on can be those of a third party; as long as the witness can testify to her familiarity with the records and can establish that the third party records were integral to the witness’s business.  This obviously obviates the need to subpoena a third party to testify concerning the third-party records.

 

Admissibility of Internet Photos under Illinois Rules of Evidence

 

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In re Marriage of Perry, 2012 IL App. (1st) 113054 examines the foundation requirements to admit Internet photos into evidence at trial.  The respondent husband downloaded what he claimed were photos of his wife from an Internet escort site and tried to use the provocative pictures against her in a custody fight.

In finding that the husband laid a proper foundation for the flash drive photos, the Court first applied Illinois Evidence Rule 901 which sets forth a two-part test for authenticity: (1) a witness must testify that a matter is what it is claimed to be and (2) he must offer evidence that describes a process or system used to produce a result and which shows that the process or system produces an accurate result is sufficient for authentication.  Ill. R. Evid. 901(b)(1), (9).

Under Evidence Rule 1001, the Court noted that a duplicate is defined as [paraphrasing] a counterpart produced by means of photography, or by other equivalent techniques  that accurately reproduce the original.  A duplicate is admissible to the same extent as the original unless there is a genuine issue concerning the original’s authenticity or if it would be unfair to admit the duplicate in lieu of the original.  Perry, ¶ 47; Ill. R. Evid. 1001(4), 1003.  In Illinois, photographs are admissible if they are identified by a witness who has knowledge of the subject matter depicted in the photographs and the witness testifies that the photos are a fair and accurate representation of the subject matter at the relevant time. Perry, ¶ 47.  Expert testimony is not required to provide a foundation for a photograph if the person testifying as to the photo’s contents has personal knowledge.  Perry, ¶ 48.

Applying these rules, the Court held that the husband laid a sufficient foundation that the photos in question depicted his wife. But in finding that the husband failed to lay a foundation that the photos were specifically from the “Chix Escorts” Web site, the Court noted that on-line evidence is naturally suspect since anyone can create phony social media accounts.  Perry, ¶ 50.  Still though, the Court noted a growing national trend to allow screenshots into evidence based on witness authentication by live testimony or affidavit.”  Perry, ¶ 51.

The First District ruled that there was improper authentication evidence that the photos were from the escort site, noting that only one photo bore the “Chix Escorts” logo.  In addition, the wife challenged the photo’s veracity by testifying that the flash drive photos were old photos she sent her husband and that were stored on his cell phone.  The court further found that none of the photos consisted of screenshots or contained the Internet address on them.  Because photos can be digitally manipulated and the wife offered testimony that the photos originated not from the Net but from her husband’s own cell phone, the Court concluded that the husband failed to lay a proper foundation that the photos originated from the “Chix Escorts” site.  Perry, ¶ 53.

Even so, the Court held that the trial court’s admission of the photos as originating from the “Chix Escorts” escort site was harmless error. That’s because there was other evidence that the wife was working as an escort and the court did not base its custody decision  on what escort agency the wife happened to be working for.  Id., ¶ 54.

 The take-away: the Perry case is a good primer on the evidence rules that dictate photograph admissibility at trial – especially in the modern-day Web context.  The court liberally applied the Illinois evidence rules’ authentication requirements for downloaded Internet content. 

From this case, it seems clear that “screenshot” evidence can be powerful – especially as an impeachment tool.  If you can show that the challenged photograph is more likely than not a true screenshot, which bears some distinctive marks such as the domain name, the date or other evidence (such as the court itself witnessing the site from its own computer – see Perry, ¶ 51) which tends to show that the photo was in fact printed from a Web site, the Court will likely allow it in.  Obviously, the proponent of the evidence will have to first establish the photo’s relevance.