Law Lessons from SPCP GROUP, L.L.C. v. F II, LLC and ANTHONY D. ERRICO, JR., Honorable Peter E. Doyne, A.J.S.C., BER-F-33679-10, June 27, 2011:
“Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c). “Hearsay is not admissible except as provided by [the New Jersey rules of evidence] or by other law.” N.J.R.E. 802.
N.J.R.E. 803(c)(6) sets forth the business records exception to the hearsay rule:
A statement contained in a writing or other record of acts, events, conditions, and subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
The business records rule does require the declarant to be available as a witness. See N.J.R.E. 803(c).
R. 1:6-6 sets forth how to place evidence before a court. “If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.” R. 1:6-6. Personal knowledge, the mandate of the rule, clearly excludes facts based merely on “information and belief.” See Wang v. Allstate Ins. Co., 125 N.J. 2, 16 (1991). Affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay. See Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986). The requirements of the rule also are not met by affidavits containing argument, other forms of hearsay and general factual or legal conclusion. Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (2011). Where hearsay is admissible under an exception to the hearsay rule which requires that specific conditions have been satisfied, hearsay evidence cannot be deemed competent unless it is first determined that those conditions have been satisfied. Jeter v. Stevenson, 284 N.J. Super. 229 (App. Div. 1995). Merely appending relevant documents to the motion brief does not constitute compliance with R. 1:6-6; such documents must be incorporated by reference in an appropriate affidavit or certification, which properly authenticates material which is otherwise admissible. See Celino v. Gen. Accident Ins., 211 N.J. Super. 538 (App. Div. 1986).
N.J.R.E. 901 sets forth the rule for authentication of evidence. “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. 901.
In order for the business records exception to the hearsay rule to apply, there must be someone in the business to certify: (1) the record was recorded pursuant to the regular practice of the business, (2) the information was recorded shortly after the related event occurred, and (3) the information recorded came from someone in that business who had a business duty to report it. See State v. Matulewicz, 101 N.J. 27, 29 (1985).
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