BANK RECORDS PROPERLY AUTHENTICATED ALTHOUGH NOT IN STRICT CONFORMITY WITH STATUTES

A critical task of a trial lawyer is to evaluate all evidence against the defendant and to seek any legal basis to prevent its introduction into evidence-in other words, to keep it from the jury’s(or judge’s) consideration.  Physical documents are considered hearsay and are generally inadmissible unless there is an exception to the hearsay rule.  In this case, the defense challenged the introduction of bank records into evedence at trial.  The summary is as follows:

In Commonwealth v. Perez ( 2016), the Court of Appeals affirmed the defendant’s convictions of Larceny Over $250, Forgery, and Uttering. In doing so, it  rejected the defendant’s contention that the bank records on which her prosecution was based were inadequately authenticated. The background was as follows. While employed as a customer service representative at a bank, the defendant allegedly forged the signatures of customers on withdrawal slips and then, on the pretense of assisting the customers with their banking needs, prevailed upon the bank’s tellers to give her cash drawn from the customers’ accounts. The prosecutor introduced the bank documents through the testimony of the bank’s internal fraud investigator. “Although that witness had no formal law enforcement background, he had worked as a fraud investigator for the bank for eight years at the time of trial, before which he had worked as a teller supervisor. His testimony during a pretrial voir dire and at trial revealed his extensive familiarity with how the diverse bank records are created and electronically stored, as well as how such records could be accessed and reproduced in hard copy format.” “The defendant challenge[d] the introduction of the relevant bank records on two different statutory grounds.

In its decision, the Court of Appeals found that each of the defendant’s statutory arguments was unavailing. The first argument was based on the prosecution’s introduction of the bank records under the business records exception to the hearsay rule. The defendant contended that certain records (such as the forged withdrawal slips) could not “qualify as business records made in good faith in the regular course of business.” The Court, while agreeing with that assertion, stated, “However, the fact that some of the admitted documents did not qualify as business records  does not mean that they could not be admitted on a different basis…. Whether they fell within the ambit of the statute was beside the point so long as they otherwise could be authenticated properly.” In the Court’s view, such alternative authentication was amply provided by the bank investigator’s “demonstrated knowledge of the bank’s record keeping system, together with the nature and circumstances of the withdrawal slips at issue.”

The basis for the defendant’s other appellate argument,  is “an evidentiary statute specific to bank records,” which provides “that copies of bank records ‘shall be competent evidence in all cases, equally with the originals thereof, if there is annexed to such copies an affidavit … stating that the affiant is the officer having charge of the original records, books and accounts, and that the copy is correct and is full so far as it relates to the subject matter therein mentioned.’ Because the bank records introduced here were unaccompanied by any keeper of the records affidavit, the defendant argued that their admission was improper.” In response, the Court stated, “We discern no violation of the statute…. The focus of the statute is to ease the admission of copies of bank records by obviating the need for the proponent of the records either to call a live witness through whom the documents had to be introduced or to produce the original records…. We do not view the statute as providing an exclusive means of authenticating bank records, or as precluding a party from authenticating a bank record through a live witness.”

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