State v. White
644 P.2d 318
Idaho
1982
Check Treatment

*1 Wiebe, County Klaus Ada Public Defend- er, Idaho, Nevin, Plaintiff-Respondent, STATE Esq., Appel- and David Z. Chief Deputy, County Defender, late Ada Public Boise, defendant-appellant. for Perry WHITE, Defendant-Appellant. A. Atty. Gen., Leroy, Lynn David H. E. No. 13835. Thomas, Boise, Gen., plaintiff-re- for Sol. Supreme Idaho. spondent. April 1982.

DONALDSON, Justice. defendant-appellant The was convicted jury Issuing a Check With Insuffi- 18-3106(b). cient Funds under I.C. He placed was probation years for three appeal this followed. appeal

The issue on is whether a appellant’s reconstruction of bank state- ment should be entered into evidence when destroyed. lost has or been prosecution The into evidence a entered statement reconstruction of a bank had December, in been sent to the defendant 1978. This evidence introduced for the purpose showing money there was no appellant’s opera- account. An bank Idaho tions officer for the First National Bank, Linkous, Virginia testified that appellant’s normally would bank statement have been committed microfilm and en- evidence, tered into but she was unable to locate December’s statement on the micro- film so she exhibit by going daily journal transaction daily and typing figures. This trans- journal every action custom- is a record banking er’s transactions and was also used preparing missing statement. appellant argues recon- structed and that exhibit “regularly kept exception under records” only exception 9—4141 is the However, argues he possibly apply. could inapplicable though even would have been business, competent course near the “9-414. Business records—When time of the act, act, if, evidence.—A of an record condition or condition or event, shall, relevant, information, competent court, insofar as method the sources qualified preparation justify evidence if the custodian wit were such as to time of identity ness testifies and the mode of its its admission.” preparation, and if it was made in the *2 925 admissible, offered as evidence of the truth of exhibit was the reconstructed [when] clearly hearsay anticipation litigation pre- its terms ... is and some banking exception hearsay to the rule must be in- pared eighteen months after voked if the entries are to be admitted.” transaction occurred. (2d on Evidence 304 717 McCormick § appellant argues also 1972). Wasson, ed. Wasson v. 73 Idaho See 803(24) relying trial court erred in on F.R.E. Lewis, 359, (1953); 253 P.2d 236 Zerbinos v. to admit the evidence the federal (Alaska 1964). 394 P.2d 886 While the ma- adopted rules have in Idaho. not been specifically identify jority opinion does not However, this has held that where a the records testified to in this case as hear- ruling is correct it is immaterial say, opinion’s discussion of the business given by the trial court for admit exception pointless would be if the records ting the may evidence have been incorrect. not constitute hear- evidence admitted did Moss, 612, Daniel v. 93 Idaho 469 P.2d 50 therefore, say. begin, proposi- I with the (1970). the evidence admitted constituted tion that prepared by The lost statement hearsay. computer ordinary course of busi identified as Once evidence has been parties agreed ness and the that had this the evi- hearsay, the becomes: Can statement not been lost it would have been excep- dence be under one of the admitted admissible under the business records ex hearsay rule? It is here that I tions to ception hearsay to the rule which is set majority opinion; I have trouble with Thus, forth in LC. 9-414. we find that § being exception am is in- uncertain under circumstances where the voked, suspect that the unwit- agreed that if the statement had not been exception, tingly has in fact created a new lost it would have been admissible under existing or at the least modified an exception, hearsay business records so, exception. application If of the new or objection concerning a reconstruction of rule ex modified case amounts to an inapplicable. lost statement is Once appellant’s facto law and violates the evidence has withstood a hear rights. constitutional say objection, secondary evidence of that subject hearsay analysis. is not to a I. Company See Standard Oil of California v. The reason for the business records ex- Moore, (9th 1957), 251 F.2d 188 Cir. cert. rule, ception hearsay which in Idaho denied, 1139, 975, 356 U.S. S.Ct. 414, is at I.C. state- § codified 9— (1958); Florists, L.Ed.2d 1148 Exclusive Inc. (for admittedly hearsay ments which are Kahn, Cal.App.3d Cal.Rptr. v. example, testimony concerning the Linkous Therefore, (1971). judgment we affirm the records of transac- bank’s defendant’s of the trial court.2 December, 1978) during tions the month of may given reliable the con- be considered BAKES, J.,C. and McFADDEN and usually pre- text in which such records are SHEPARD, JJ., concur. pared. puts As Professor McCormick it: BISTLINE, Justice, dissenting: exception justified grounds “The regarding analogous underlying Linkous was other ex- testify allowed to to those hearsay ceptions hearsay in business rule. Unusual statements. “Entries reliability regarded by as furnished regularly kept books and other records ... Thomas, omitted); Secondary State v. (1975) (citations Idaho is controlled objection We have I.C. 9-411. The made no 94 Idaho § long recognized under this principle this rule in a situa- section and is a established an “[i]t that, excep- involving do not error but we of this Court with limited fundamental tion, exception. subject proper within this error at trial must be the find that this case falls Therefore, to review the evidence appeal.” we decline State to merit review on Wright, 229, 231, under I.C. 9-411. 542 P.2d practice that in does not entries have constitute and will be ad- high a comparatively degree accuracy long require- missible as meets the (as compared memoranda) be- ments out in set 9—411.” such cause books are custom- records evidence, however, Secondary *3 arily by system- checked as to correctness the reliability contain indicia of which the balance-striking, very atic the because contain, business records themselves there- regularity continuity and the records of is original fore the that the business rec- recordkeeper calculated to train the in in may way ords have been admissible of precision, habits in because actual guarantees reliability secondary the of the experience the entire of the na- business evidence. must Such evidence be evaluated many constantly other activities oblique recognition on its merits. of own In upon function in reliance entries of this fact, majority the relegates this second- Evidence, kind.” McCormick 306 at § ary requirements evidence to the of an en- (2nd 1972). (Emphasis added.) ed. 9-411(1)— tirely different statute —I.C. § Mingo, See Curiel v. provides part: P.2d which in “Secondary writings— evidence be no When admissible. —There can evi- In this case there is no but that writing dence of the of a contents other the anticipation reconstruction in itself, writing except than the the fol- statutory prerequi- trial fails to the meet lowing cases: sites for admission under the business rec- exception. ords provides: original 9—414 lost 1. When the has been or § destroyed; proof in which case of the

“Business competent records —When or must first be made.” loss destruction act, evidence. —A record of an condition event, shall, relevant, or insofar as “best evidence” rule not de- This competent if evidence the custodian or hearsay objections but signed meet rath- to qualified other witness testifies to the er evidence when a is intended to allow identity preparation, and the mode of its case lost or writing critical to a has been regular and if it was the course a case cannot be destroyed, therefore business, act, at or near the of the time right and a vindicated or defend- brought, if, condition or opinion ed, recognize to lost at all. “Failure [the court, information, of the the sources of qualification of the evi- document] [best method and time of preparation were many mean rule would in instances a dence] justify such as to (Em- its admission.” days bygone return to the and unlamented phasis added.) paper to was to lose which lose one’s Obviously, the two criteria which right.” serve one’s McCormick on Evidence 1972). short, (2d indicia of reliability preparation in ed. In the — business, course necessity and at or best is a rule of near evidence rule missing the time of is a the act —are in this while the business records Furthermore, regard case. it majority reliability. rule of In this need hearsay objections may even statutory only assert criteria have be noted that Rather, secondary been met. of a sets forth still be raised to evidence unique holding, practicing writing secondary writing, trial if that lawyers may troubling: hearsay. indeed find evidence is contains showing original parties “Upon proper circumstances where the that an “[U]nder agreed original that had writing containing document not facts relevant issues destroyed been lost it would have been admissible as a in the case is lost or or otherwise record, inaccessible, hearsay objection secondary business con- con- evidence its However, cerning secondary evidence the lost tents becomes admissible. inapplicable. origi- hearsay gen- statement Once the rule which excludes evidence hearsay may operate testimony nal of- objec- erally evidence has withstood a to render tion, secondary original incompetent.” fered to establish its contents (2d thing “The Am.Jur.2d Evidence 498 at 557 ed. would be for her 1972) (footnotes omitted). bring journals The from which she got jury does not seem to realize this fact of life. this information and let the me- those, andering through missing That does not cure much of which hearsay anyone’s of its lack of would be not relevant and trustworthiness or not ; see, business we otherwise make the are not here to admissible. jury let the become informed on everyone And the fact that the agreed1 that who is a customer of the Idaho First business records would have National Bank and what their bank bal- been admissible does not mean that are, ances what their activities are. precluded asserting from his hearsay objection ‘(c) general secondary purposes “And evi- of these justice rules grave dence. It is a and the interests of will error to assume that best *4 be by served admission of secondary to, the the statement evidence is identical and into evidence.’ I would as, therefore find that. trustworthy original the evidence. Yes, “MR. Judge, MORDEN: I would In any originals the real of the note that those are the civil rules that lost,

documents at issue here were not read, you the Federal civil rules. the majority misapplies very therefore the “THE COURT: Those are the Federal rule it develops. Linkous testified that she cases, Rules of evidence for all criminal prepared report her original daily from the Okay. and civil. guided And I am by journal. transaction What was lost was the ” those that is admissible. (Emphasis synthesized individual record of the defend- added.) which, ant together with comprehensive the daily journals, transaction was Perhaps it is true report may that the course of business. The individ- have been admissible under the federal ual account statement actually was com- evidence, rules of my but to knowledge, the piled daily journal. from the transaction legislature them; Idaho yet adopted has not purported preparing for those may persuade rules they but do not report Linkous’ was in essence that guide the admissibility of evidence in Idaho. original journals transaction were “too The that there is a federal rule bulky.” As by noted the majority, applicable however, the trial report, my to court relied on a federal rule of evidence in mind demonstrates that the evidence is not admitting this report. rule, The court stated: admissible the absence of such a that the rule which the Court fashions to- “THE right. COURT: All just I am day is a new rule under Idaho law. The

pointing that you, see, out to you trial court today’s was more candid than this something that is admissible. All majority when it stated that right. Now, get “[t]he let’s over into the last thing bring would be for her to (24) section 803. Section 24. ‘Other ex- journals got from which this informa- she ceptions. A specifically statement not jury meandering and let [sic] covered any of foregoing excep- ” through those . . . . tions but having equivalent circumstan- guarantees tial trustworthiness, if the Obviously, report admission of the is not (a) Court determines that the statement compelled by the absence of the fact;’ is offered as evidence of a material documents, admittedly which were availa- ‘(b) and I do. The statement is more Rather, admitting ble. report simply probative point on the for which it is more than resorting origi- convenient offered than any other evidence which journals. nal While evidentiary such an proponent procure can through rea- may very “rule of convenience” well be sonable efforts’ and I desirable, do. necessary and recog- must be majority’s 1. The defendant never ment, however, this was stipulated characterization argu- I admissible. assume for the of the purpose position proper. evidence, ary subject nized for it is—a evidence of that is not what new rule of hearsay analysis.” under which the is “conve- to a Neither the cited proposition— felony quoted nienced” cases stands for the into conviction. having neither case addressed objection. II. Standard Oil Co. California v. Moore, (9th 1957), F.2d Cir. Even if were to one admit that that, general proposition, *5 ther, majori- prevented that has not but ” post offender’ would be an ex facto ty relying from on those cases. The defend- applied law if to the case in which the rule ant under I.C. 9-411 was adopted. 166, 102 Idaho at P.2d at admission, it is a rule of not a rule (quoting Bull, (3 Dali.) v. Calder 3 U.S. need for of exclusion. There is no 386, 390, (1798)). 1 L.Ed. 648 This is true object requirements defendant regardless of whether a law evidentiary have met unless the of the section not been adopted by rule is legislature or by the gain on the section to admission state relies Byers, supra; courts. City Bouie v. of Co- might which excluded on of evidence lumbia, 378 U.S. 84 S.Ct. rely did not grounds. state on L.Ed.2d 894 below was no 9—411 so there I.C. § The majority today manufactures new majori- object. If the for the gives rule of evidence and it application to to hold that the reconstruction ty wishes prior thereto, clearly acts committed an ex fact a Linkous is in “summa- proposition. facto I am to con- unable reluctance to ry,” I do not understand the appellate cur in procedure such an and must rely statutory provision Idaho’s for ad- on dissent. summaries, preference such mitting law jurisdictions, for case from other which ADDENDUM provide a rule almost identical to I.C. written, 411(5). foregoing Since ma- § 9— jority has eliminated its reliance 411(1) its from in- instead 9— support

serted to two citations cases in

its rule that “[o]nce

has hearsay objection, withstood second- Knee, 2. But see State (1980) (Bistline, J., dissenting). P.2d 263 When the consists of numer- “5. accounts or other documents can- ous 411(5)provides: great I.C. § without be examined in court loss not 9— time, sought “Secondary from them writings and the evidence evidence of —When general of the whole.” result admissible. —There can be no evidence writing writing contents of a other than the itself, except following cases: notes as a authority “Sum- adopt has the the new rule may, maries voluminous records evidence,2 even if one tó were admit judge, discretion the trial received in desirable, its adoption patently it is Florists, Kahn, evidence.” Exclusive Inc. v. application evident that of the rule Cal.App.3rd Cal.Rptr. (1971) subjects case White to facto law an ex that, holds under the California Evidence I, in violation of article 10 of the section Code, certain summaries of business records I, United article States Constitution and provi- a similar are admissible. Idaho has section 16 of the Idaho In Constitution. 9-411(5)3 sion—I.C. § —but Byers, State v. Idaho statute, rely stating on this instead (1981), “holding we stated that a [which] objection defendant made “[t]he legal alters the rules of such that ” logic escapes section under this .. . . This ‘less testimony the law different than me—the defendant made no un- required at time of the commission of Florists, Oil or Exclusive ei- der Standard necessary] the offense in order convict [is