Author: LegalEase Solutions

QUESTION PRESENTED

Whether there is support for an objection to the prior convictions for sentence enhancement on the grounds of 1. Improper foundation, 2. Authentication, and 3. Hearsay?

 SHORT ANSWER

Authentication or identification is a condition precedent for the admissibility of evidence. The party introducing evidence has the burden of laying a proper foundation for its admission. The general rule is that hearsay evidence is not admissible at trial. Public records are an exception to this rule. But, ‘trustworthiness is the cornerstone’ of this exception. So, in the absence of a public record entry, the rule requires a certification that a diligent search failed to disclose the record or entry.  Courts have held that authentication of a “driver’s abstract” is essential for its admissibility to prove prior convictions. Therefore, it is the burden of the State to prove that the record it plans to rely upon is authenticated and an exception to hearsay rule. In the instant case, if the MVC is not the source of the proffered information in, it cannot authenticate the abstract. In the absence of authentication, the evidence becomes hearsay.

RESEARCH FINDINGS

Driver’s abstracts have been permitted “to sustain a conviction for driving while on revoked list” only when it has been “authenticated” or “certified” by the custodian. State v Colley, 397 N.J.Super. 214, 220, 936 A.2d 1005 (2007) (citing State v. Zalt, 217 N.J.Super. 209, 211, 525 A.2d 328 (1987)) ; State v. Carey,  232  N.J.Super. 553, 558 (1989). Similarly, when the State failed to authenticate the inspection certificates of breath analyzer instrument, they were held “inadmissible in evidence *** and failed to lay any foundation qualifying the inspection certificates as business records ***.” State v Conners, 129 N.J.Super. 476, 485, 324 A.2d 85 (1974). “‘A party introducing tangible evidence has the burden of laying a proper foundation for its admission.’” State v Mosner, 407 N.J.Super. 40, 62, 969 A.2d 487 (2009) (quoting State v. Brunson, 132 N.J. 377, 393, 625 A.2d 1085 (1993)). “This foundation should include a showing of an uninterrupted chain of custody.” Id.

Public records are an exception to the hearsay rule. But, “trustworthiness is the cornerstone of the public records exception to the hearsay rule.” Villanueva v. Zimmer, 431 N.J.Super. 301,317, 69 A.3d 131 (2013). Courts have held that “evidence of the absence of an entry in a business record may be offered to prove the non-occurrence or nonexistence of a matter”  and “[i]n the case of the absence of a public record entry, the rule requires a certification that a diligent search failed to disclose the record or entry.” Manata v Pereira, 436 N.J.Super. 330, 345, 93 A.3d 774 (2014).

            The requirements to lay foundation for systematically prepared computer records are set out as:

A witness is competent to lay the foundation for systematically prepared computer records if the witness (1) can demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record.

Hahnemann University Hosp. v. Dudnick, 292 N.J.Super.11, 18, 678 A.2d 266 (1996).

The Supreme Court has held that if the accused is to “be forever barred from operating a motor vehicle on the highways of the state, [he] should, before sentence is imposed, be given knowledge of the introduction of such a certification [of prior conviction] into the record and an opportunity to dispute the truth or accuracy of it.”  State v. Myers, 136 N.J.L. 288, 55 A.2d 661 (1947). N.J.R.E. 901.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims. N.J.R.E. 807. Except if offered by an accused in a criminal proceeding, when any statement is admissible by reason of Rules 803(c)(8), 803(c)(9), 803(c)(10), 803(c)(11), 803(c)(12), 803(c)(13), 803(c)(14), 803(c)(15), 803(c)(26) or 804(b), the judge may exclude it at the trial if it appears that the proponent’s intention to offer the statement in evidence was not made known to the adverse party at such time as to provide that party with a fair opportunity to meet it. N.J.R.E. 803(c)(10). Absence of public record or entry. Subject to Rule 807, a certification in accordance with Rule 902 stating that diligent search failed to disclose a public record, report, writing, or entry when offered to prove (A) the absence of a public record, report, writing, or entry, or (B) the nonoccurrence or nonexistence of a matter of which a record, report, writing, or entry is regularly made and preserved by a public office or agency, unless the sources of information or other circumstances indicate that the inference of nonoccurrence or nonexistence is not trustworthy.

CONCLUSION

The courts have held that abstracts are admissible in evidence for prior convictions only when they are certified or authenticated by the custodian. The burden of laying proper foundation of evidence is upon the party who introduces it. The requirement of authentication or identification is a condition precedent to admissibility in evidence. Thus, the defendant can object to the abstract relied on by the State referring to prior convictions, on the grounds of authentication, without which it would become hearsay.