NEW FL decision holding expert witness to admit business records evidence.

[FL4answer58]

Florida Fourth District: Business Records

“It is not every day that an appellate court issues a decision holding that a party properly used an expert witness to admit business records as evidence.

It is today, though, as seen by this decision from the Fourth District.”

SHARA N. COOPER, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D08-1375, Sept 2010.

On appeal, defendant argues that the trial court erred in admitting

her wireless phone records into evidence because the State’s expert was

not a qualified witness. We disagree.

“The admissibility of evidence is within the sound discretion of the

trial court, and the trial court’s determination will not be disturbed on

appellate review absent a clear abuse of that discretion.” Brooks v. State,

918 So. 2d 181, 188 (Fla. 2005); see also LEA Indus., Inc. v. Raelyn Int’l,

Inc., 363 So. 2d 49, 52 (Fla. 3d DCA 1978) (“t lies within the trial

court’s discretion to determine whether admission of . . . business

records is justified.”).

Business records are admissible if a records custodian or other

qualified witness testifies that the record

[(1)] was made at or near the time of the event;

(2) was made by or from information transmitted by a person with knowledge;

(3) 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.

Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008); see also Walls v. State,

977 So. 2d 802, 803 (Fla. 4th DCA 2008).

The proponent of the evidence need not call the person who actually

prepared the business records in order to lay a foundation for admitting

the records into evidence. Mann v. State, 787 So. 2d 130, 135 (Fla. 3d

DCA 2001); see also Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So.

2d 1121, 1121 (Fla. 2d DCA 1988) (“‘In order to prove a fact of evidence

of usual business practices, it must first be established that the witness

is either in charge of the activity constituting the usual business practice

or is well enough acquainted with the activity to give the testimony.’”

(quoting Alexander v. Allstate Ins. Co., 388 So. 2d 592, 593 (Fla. 5th DCA

1980))).

Edited October 4, 2010 by FL4answer58

[admin]

Interesting...

[Savoir]

because this does not sound good for Pro Se vs. JDB's

Unless I'm reading this totally wrong .... ???

[inthesticks]

Here's the entire decision on Findlaw.

This was a murder case. The records involved were records of phone calls made from the defendant's phone. The expert witness was a Verizon Wireless store manager. I'm not sure the arguments used to qualify him as an expert witness would apply to a clerical pool drone whose expertise consists entirely of pulling up a number on a computer screen and cutting and pasting into a boilerplate affidavit template.

[FL4answer58]

Here's the entire decision on Findlaw.

This was a murder case. The records involved were records of phone calls made from the defendant's phone. The expert witness was a Verizon Wireless store manager. I'm not sure the arguments used to qualify him as an expert witness would apply to a clerical pool drone whose expertise consists entirely of pulling up a number on a computer screen and cutting and pasting into a boilerplate affidavit template.

While, I agree with 'inthesticks, I would not be surprised if you find this case cited in JDB's argument for admission of business records expert.

Keep in mind briefs often 'stretch' truths - in small claims court.

[inthesticks]

While, I agree with 'inthesticks, I would not be surprised if you find this case cited in JDB's argument for admission of business records expert.

Keep in mind briefs often 'stretch' truths - in small claims court.

I'm completely sure some will try to use this. I just think it could be successfully argued against.

[Massive]

That won't hold water in debt collection cases. Heck, you can tear apart an original creditors affidavit of debt by way of making them prove they own the debt, which they can't in the world of securitization.

[FL4answer58]

Agree it 'won't hold' if used in arguement and 'it could be successfully argued against'.

The key here is as 'inthesticks' pointed out - 'This was a murder case.'

In this case this issue speaks to Flroida statutes 'business records as evidence'.

The case does not speak to a consumer debt dispute and not required to follow by rule any of the Florida statutes on Commercial Collection Practices.

In a JDB case it’s often the chain of assignment and bill of sale in question.

The case above, in some ways, may help an OC testifying to their own records, but not a JDB testifying to someone else’s records.

However, I do think you will see it in briefs 'fishing' for use and arguement for FL laws citing 'business records as evidence'.

In particular I would keep an eye out for it when against a OC in Florida courts.

Edited October 5, 2010 by FL4answer58

[admin]

It is out of context for debt cases. Let's wait until it is used in a debt case.

[Florida Wreck]

I'm in Florida and being sued by Capital One via Zakheim & Associates, their lawyers. Zakheim used this exact wording in their affidavit from the record keeping department. I objected (this, among other things), but I don't hold out hope for anything coming of it.

I also think Florida is one of the not-so-good states to be a debtor since the judges and laws also seems to favor the creditor generally. Just the opinion of one nervous wreck.

Though I have stalled them for 18 months. Sadly, this is about to end.