Monarch Federal Savings & Loan Ass'n v. Genser
Monarch Federal Savings & Loan Ass'n v. Genser
Opinion of the Court
During the trial of the issues in this mortgage foreclosure action, plaintiff Monarch Federal Savings and Loan Association (Monarch) requested that certain computer records bo admitted into evidence under the business records exception to the hearsay rule, Evid. R. 63(13). Defendants Lena Genser and Sidney Genser
The first witness, Richard De Russo, assistant vice-president of the Wood-Ridge National Bank (Wood-Ridge), testified that Monarch maintains a lock-box deposit account with Wood-Ridge for processing of their mortgage accounts. The mortgagors forward their payment together with an IBM card to the bank. After the monies are received, processed and checked, the computer cards are forwarded to Financial Services, Inc. (Financial Services) and the checks are forwarded to Monarch. Any problems or questions with the account are handled by Monarch. This witness also indicated that the account was maintained in the regular course of the bank’s business and that Wood-Ridge provides similar services for other banks.
The next witness, Otto Kieffer, is the office manager of the mortgage department of Financial Services, a computer corporation located in Glen Rock, New Jersey. He testified that Financial Services, pursuant to an agreement with Monarch, has computerized the mortgage accounts of Monarch. When an account is initially opened, Monarch forwards all the relevant information to Financial Services which is transferred into the computer. Thereafter, all transactions between Monarch and the mortgagor are processed through the individual account. Monarch receives a daily read-out for each transaction and a monthly read-out for each individual account. Every mortgagor receives monthly and yearly statements.
The records of the Gensers’ account were marked for identification and identified by Kieffer. He testified that this account, as well as the other accounts, are processed and maintained in the regular course of Financial Services’ business,.
The last witness, Victor Urbanovich, has been an employee of Monarch for the past 2x/¡ years and presently is an assistant vice-president. He testified that he is familiar with the operation of Monarch’s mortgage department This wit
Based on this evidence, defendants maintained that a proper foundation had not been established for the admission of these records.
The issue before this court is one of first impression in this State: What is the proper foundation to support the authenticity of a computer printout?
In New Jersey the admissibility of business records is governed by Evid. R. 63(13), which provides as follows:
A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.
This rule, fashioned after the Uniform Rule of Evidence 63(13),
The basic theory of the uniform law is that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence. [at 218]
Accord, Brown v. Mortimer, supra 100 N. J. Super. at 403; Falcone v. N. J. Bell Tel. Co., 98 N. J. Super. 138, 147 (App. Div. 1967); Carroll v. Houtz, 93 N. J. Super. 215, 219-220 (App. Div.
Both the UBREA and Uniform Rule of Evidence 63(13) liberalized and modernized the common law prerequisites for admission of business records. See Smith v. First Nat'l Stores, Inc., 94 N. J. Super. 462, 467 (App. Div. 1967); State v. Scelfo, 58 N. J. Super. 472, 481 (App. Div. 1959); State v. Hudes, supra 128 N. J. Super. at 599-600; McCormick, Evidence (2d ed. 1972), § 307, at 720; 5 Wigmore, op. cit., § 1561b at 499. Under the 'common law four elements were needed to be proven:
(1) the entries must have been original entries made in the routine of business, (2) must have been made upon personal knowledge of the recorder or of someone reporting to him, (3) must have been made at or near the time of the transaction recorded, and (4) the recorder and his informant had to be shown to he unavailable. IState v. Hudes, supra at 600.]
Accord C. McCormick, op. cit., § 306, at. 720. The modern New Jersey approach has eliminated the common law requirement of unavailability of the recorder, State v. Hudes, supra at 600, and the requirement of personal knowledge of the recorder, State v. Martorelli, 136 N. J. Super. 449, 453 (App. Div. 1975). In Martorelli the Appellate Division set forth the three requirements for admissibility under Evid. R. 63(13) :
First, the record must he made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Third, the source of information and the method of preparation must justify allowing it into evidence. [136 N. J. Super, at 453]
Accord, State v. Hudes, supra, 128 N. J. Super, at 600; see Adams v. N. J. State Fair, 71 N. J. Super. 528, 531 (App. Div. 1962) (UBREA decision finding “1955 balance”
Although “the business entry exception to the hearsay rule * * * is generally limited to business records,” our courts have applied this exception to “[r]ecords other than commercial payment records.” State v. Conners, 125 N. J. Super. 500, 506 (Cty. Ct. 1973), aff’d in part, rev’d in part, 129 N. J. Super. 476 (App. Div. 1974) (emphasis supplied); see, e. g., State v. Reddick, 53 N. J. 66, 68 (1968) (autopsy report admitted after excising opinions as to cause of death); State v. Gardner, 51 N. J. 444, 462 (1968) (hospital reports with medical facts admitted so long as opinions as to cause of injury excluded); State v. Provoid, 110 N. J. Super. 547, 556-557 (App. Div. 1970) (police record of telephone calls reporting citizens’ complaints admitted under Evid. R. 63(13)); Schneiderman v. Strelecki, 107 N. J. Super. 113, 118 (App. Div. 1969) (police report of automobile accident admissible under Evid. R. 63(13)); Falcone v. N. J. Bell Tel. Co., supra 98 N. J. Super, at 146 and n. 1 at 147 (treating physician’s medical record admissible under UBREA); Carroll v. Houtz, supra 93 N. J. Super, at 221-223 (autopsy record containing reports of tissue and blood tests admissible under UBREA); Hackensack Hosp. v. Tiajoloff, 85 N. J. Super. 417, 419-420 (App. Div. 1964) (hospital books of account admissible under UBREA to prove services rendered but not their value); State v. Laster, 69 N. J. Super. 504, 514 (App. Dir. 1961) (jail doctor’s report book admissible under UBREA); State v. Bassano, 67 N. J. Super. 526, 534 (App. Div. 1961)
Only recently have the courts throughout this country faced the problem of admitting a new form of record—the computer printout. See McCormick, op. cit., § 314 at 733. Computer-kept records differ in some crucial respects from traditional business records.
In furtherance of the rationale behind this exception, state and federal courts have found computer printouts admissible as a business record according to their applicable evidence rules:
Although many courts have ruled upon the admissibility of computer printouts, only some of them have addressed the question of what foundation is required.
The foundation requirements as set forth in these cases can be broken down into six elements. The first consideration is whether the foundation witness must have personal knowledge of the act or event recorded or, more specifically, the need to produce the witness who originally supplied the information recorded on the computer tape. The majority of
The majority rulings on this point of the personal knowledge requirement are consistent with New Jersey’s ruling which eliminated the common law requirement of personal knowledge. See State v. Martorelli, supra 136 N. J. Super, at 453. Thus, this court will not require proof of per
The qualification of the foundation witness is the second consideration. Numerous cases in other jurisdictions have examined the issue of whether the witness in question is the custodian of the computer records or otherwise qualified to be the foundation witness. Transport Indem. Co. v. Seib, supra, the first ease in this area, demanded the highest qualifications for the foundation. The witness was not only a director of the computer-processing company and the custodian of records, but he also had prepared and supervised the preparation of the computer records. Id. 178 Neb. at 255-256, 132 N. W. 2d at 873. More recent decisions, however, have declared that there is no need for the preparer of the computer records to testify. See United States v. Fendley, supra at 185; D & H Auto Parts, Inc. v. Ford Marketing Corp., supra at 551; King v. State ex rel. Murdock Acceptance Corp., supra at 396; cf. Bobbie Brooks, Inc. v. Hyatt, supra 195 Neb. at 599-600, 239 N. W. 2d at 784-785 (present custodian rather than custodian at the time of preparation of records allowed to testify). In some cases the courts have required that the supervisor of the computer-processing department testify, see People v. Gauer, supra 7 Ill. App. 3d at 514, 288 N. E. 2d at 25 (keeper of records who had direct supervision and control of records) (by implication); King v. State ex rel. Murdock Acceptance Corp., supra at 396 (assistant treasurer and accounting manager of data-processing department); Railroad Comm’n v. Southern Pac. R. Co., supra at 128 (person in charge of data-processing department who supervised computerized accounting records); whereas other courts have permitted different persons to be the foundation witness, see United States v. Scholle, supra at 1123 (section chief of department who developed computer system); Merrick v. United States Rubber Co., supra 7 Ariz. App. at 435, 440 P. 2d at 316 (an employee of the credit office who was familiar with ac
All of the cases which have dealt with the qualifications of the foundation witness involve statutes or ease law which delineate the type of witness required. New Jersey
* * * a proper foundation for [computer] evidence is laid by testimony of a -witness who is familiar with the computerized records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy.
Thus, in providing information as to the methods of preparation, the foundation witness should also be able “to testify as to the type of computer employed, the permanent nature of the record storage, and how daily processing of information to be fed into the computer was conducted, resulting in permanent records.” Railroad Comm’n v. Southern Pac. R. Co., supra at 128.
The third element of foundation testimony is proof that the computer records were made in the ordinary course of business. See United States v. Scholle, supra at 1125: United States v. Russo, supra at 1241; D & H Auto Parts, Inc. v. Ford Marketing Corp., supra at 552; Dept. of Mental Health v. Beil, supra 44 Ill. App. 3d at 409, 2 Ill. Dec. at 660, 357 N. E. 2d at 880; State v. Hodgeson, supra at 428; King v. State ex rel. Murdock Acceptance Corp., supra at 398; Bobbie Brooks, Inc. v. Hyatt, supra 195 Neb. at 600, 239 N. W. 2d at 785; Transport Indem. Co. v. Seib, supra 178 Neb. at 257-258, 260, 132 N. W. 2d at 874; State v.
In providing an adequate foundation, the fourth consideration is the time of preparation of the computer printout. The requirement that the entry be made “at or about the time of the act * * * recorded,” Evid. R. 63(13), is satisfied so long as the input is placed into the computer “within a reasonable time after each act or transaction to which it relates.” United States v. Russo, supra at 1240; see Dept. of Mental Health v. Beil, supra 44 Ill. App. 3d at 409, 2 Ill. Dec. at 660, 357 N. E. 2d at 880; State v. Hodgeson, supra at 428; King v. State ex rel. Murdock Acceptance Corp., supra at 398; Bobbie Brooks, Inc. v. Hyatt, supra 195 Neb. at 600, 239 N. W. 2d at 785 (transactions “recorded within one week of their occurrence within the regular course of business”); Transport Indem. Co. v. Seib,
The fifth element of a proper foundation is the source of information from which the computer printout was made. Consonant with the requisites of Evid. R. 63 (13), the cases in other jurisdictions demand that the sources of information be specified. See United States v. Scholle, supra at 1125; United States v. Russo, supra at 1240; D & H Auto Parts, Inc. v. Ford Marketing Corp., supra at 552; Dept. of Mental Health v. Beil, supra 44 Ill. App. 3d at 409, 2 Ill. Dec. at 660, 357 N. E. 2d at 880; State v. Hodgeson, supra at 428; King v. State ex rel. Murdock Acceptance Corp., supra at 398; Bobbie Brooks, Inc. v. Hyatt, supra 195 Neb. at 600, 239 N. W. 2d at 785; Seattle v. Heath, supra, 10 Wash. App. at 956, 520 P. 2d at 1397 (gives complete list of sources). The original source of the computer program must be delineated, United States v. Scholle, supra at 1125, and the reliability and trustworthiness of the information fed into the computer must be established. United States v. Russo, supra at 1240; King v. State ex rel. Murdock Acceptance Corp., supra at 398, followed in Dept. of Mental Health v. Beil, supra 44 Ill. App. 3d at 409, 2 Ill. Dec. at 660, 357 N. E. 2d at 880, and State v. Hodgeson, supra at 428, and Seattle v. Heath, supra 10 Wash. App. at 956, 520 P. 2d at 1397. The foundation witness should “describe[d] in detail the sources of information upon which the printout was based,” United States v.
The sixth, and perhaps the most important, element of foundation proof is the method and circumstances of the preparation of the computer printout. Most courts have required a complete and comprehensive description of the method of preparation. See, e. g., People v. Gauer, supra 7 Ill. App. 3d at 514, 288 N. E. 2d at 25; King v. State ex rel. Murdock Acceptance Corp., supra at 398; Transport Indem. Co. v. Seib, supra 178 Neb. at 257, 132 N. W. 2d at 874 (141 pages of record dealt with method of preparation •—the most provided in any case). This description must include testimony as to (1) the competency of the computer operators, King v. State ex rel. Murdock Acceptance Corp., supra at 398; see United States v. Russo, supra at 1241 (persons who feed information to computer perform accurately); Railroad Common v. Southern Pac. R. Co., supra at 129, (preparation of records done “by persons who understood operation of the equipment and whose regular duty was to operate it”); (2) the type of computer used and its acceptance in the field as standard and efficient equipment, King v. State ex rel. Murdock Acceptance Corp., supra at 397-398, followed in Dept. of Mental Health v. Beil, supra 44 Ill. App. 3d at 409, 2 Ill. Dec. at 660, 357 N. E. 2d at 880, and State v. Hodgeson, supra at 428; Railroad Comm’n v. Southern Pac. R. Co., supra, at 129; Seattle v. Heath, supra 10 Wash. App. at 956, 520 P. 2d at 1397; see United States v. Scholle, supra at 1125 (assumption that equipment is functioning properly); accord, United States v. Russo, supra at 1239-1240; (3) the procedure for the input and output of information, including controls, tests and checks
In conclusion, under Evid. R. 63(13) a proper foundation for the admissibility of a computer printout as a business record should be provided by a person who may lack personal knowledge of the events recorded but is sufficiently familiar with the computerized record and the
Using the above principles to evaluate the foundation presented here, the court initially notes that in this case the actual route of the information from its source to the computer record is somewhat different from that of the previously cited cases. The mortgage payment, accompanied by a prepunched computer card, is sent by the mortgagee to the postoffice box of Wood-Ridge where the cards and the payments are matched and cheeked for the amounts. The checks are then forwarded to Monarch and the computer cards are sent to Financial Services. Financial Services processes these cards through its computer and obtains a daily readout of the total daily payments, which readout is then checked against the total amount on the checks received by Monarch. Financial Services then forwards the daily computer printout to Monarch, which receives it on the next day and cross-checks the totals. Three witnesses were called to explain the procedure involved in processing these checks and computer cards.
Defendants, however, have raised several objections to the admission of these computer printouts, including the qualifications of the foundation witnesses and the reliability and operations of the computer itself. Throughout the testimony of these witnesses defendants objected that they did not have personal knowledge of the mortgage transactions recorded on the computer printout. As I have previously noted, a foundation witness does not need to have personal knowledge of the transaction recorded. Therefore, as to all three witnesses this objection is without merit.
Urbanovich, the third witness called, has been the assistant vice-president of Monarch for the past ten years and was generally familiar with the workings of the mortgage department of the bank by reason of being in charge of the accounting at the bank. He was also familiar with the arrangements for processing mortgage payments that Monarch has with Wood-Ridge and Financial Services. This court finds that Urbanovich was sufficiently familiar with the methods and circumstances of processing mortgage payments from Monarch to Financial Services so as to be a proper foundation witness. Any objections made by defendant as to his qualifications are overruled.
The key foundation witness in this case was Kieper, the office manager of Financial Services, who is responsible for handling mortgage installment loans and has been in Financial Services employ for 17 years. He neither is a computer expert nor did he set up the computer mechanics of this particular service. However, expertise in computers or setting up the particular computer program is not required under the reasoning and holding of this decision. The objection as to Kieper’s lack of personal knowledge as to the relationship between Monarch and Financial Services
There is a question, though, as to whether Kieper is sufficiently familiar with the methods and circumstances of the computer printout’s preparation. A review of the testimony before this court reveals that adequate proof has been presented to show that the computer record was made within a reasonable time of the receipt of the mortgage payments and that the computer records and the printouts were made in the ordinary course of business for Monarch and Einaneial Services. The problem arises when the testimony as to the actual preparation of the printout is examined. Kieper testified as to what information was received by Financial Services to initiate a new mortgage loan account but he did not explain what Financial Services does with this information or how the computer program on a new account originates.
On the evidence presented to this court, plaintiff has failed to lay the proper foundation. But in light of the
Lena Genser was the sole mortgagor. She and Sidney Genser were the obligors on the bond given to accompany the subject mortgage.
This decision also appears to be the first in the United States on the question of a proper foundation for the admissibility of computerized records under the Uniform Rules of Evidence. There are three other jurisdictions which have statutes modeled after the Uniform Rules of Evidence. C. Z. Code, Tit. 5, § 2962(13) (1963) ; Kan. Stat. § 60-460(m) (1965) ; V. I. Code Tit. 5, § 932(13) (1967) ; see 5 Wigmore, Evidence (Chadbourn rev. ed. 1974), § 1561a at 493-497 but research has not revealed any decisions on this issue in these jurisdictions. For a discussion of the admissibility of computer printouts under Kansas law, see Comment, “The Admissibility of Computer Printouts in Kansas,” 8 Washburn L. J. 330 (1969).
Two Appellate Division opinions, prior to the decision in Merla, dealt with computer-related evidence but did not specifically hold a computer printout to be admissible as a business record. In State v. McGee, 131 N. J. Super. 292 (App. Div. 1974), testimony that the National Crime Information Center’s computer listed a gun as stolen was held to be inadmissible under the rationale of Evid. R. 63(13) where the informant “was under no duty to make a truth
9A Uniform Laws Ann. 637 (1965).
For a historical analysis and a legislative background to New Jersey’s evidence rules, see, e. g., Phillips v. Erie Lackawanna R.
9A Uniform, Laws Ann. p. 506 (1965). The UBREA, after which N. J. S. A. 2A :82-34 et seq. was modeled, provides in pertinent part:
A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies as to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the Court, the sources of information, method and time of preparation were such as to justify its admission. [9A Uniform Laws Ann. 506 (1965)]
See 5 Wigmore, op. cit., § 1561a, at 490. The UBREA has been adopted in its entirety in 17 states. See Id. at 493-497.
For discussions of the workings of computers and the special evidentiary problems inherent in the use of computerized business records, see, e. g., Armstrong, “The Admissibility of Computer Print-Outs of Business Records,” 41 Miss. L. J. 604 (1970); Bernacchi & Larsen, “Philosophy, Data Processing And The Rules of Evidence,” 10 Law Notes 11 (1974); Ewald, “Discovery and The Computer,” 1 Litigation 27 (1975); Freed, “Computer Print-Outs as Evidence,” in 16 Am. Jur., Proof of Facts 273 (1965) ; Freed, “Computer Technology and Trial Technique,” 1962 Trial Law. Guide 113; Furth, “Computers,” in Computers and the Law (2 ed. Bigelow 1969), 26; Mills, Lincoln & Langhead, “Computer Output — Its Admissibility into Evidence,” 3 L. <& Computer Tech. 14 (1970) ; Roberts, “A Practitioner’s Primer on Computer-Generated Evidence”, 41 V. Chi. L. Rev, 254 (1974) ; Tapper, “Evidence From Computers,” 4 Rutgers J. Computers and L. 324 (1975).
Note that by statute, Florida and Iowa hare specifically exempted computer records from the hearsay rule. Fla. Stat. Ann. § 92.36 (2) (Supp. 1969) ; Iowa Code Ann. § 622.28 (Supp. 1970).
TMs act was drafted by a committee appointed by the Commonwealth Fund of New York, 5 Wigmore, op oit., § 1561a at 489, and first enacted by the State of New York in 1928, see Armstrong, supra at 2. Eight states and the Federal Government adopted the Commonwealth Fund Act. See 5 Wigmore, op. oit., § 1561a at 493-497, n. 6. For the text of this act, see id. at 489—490.
Fed. R. Evid. 803(6) (superseding 28 U. S. C. § 1732 (1964) (federal version of Commonwealth Fund Act)).
The common law regarding the admissibility of business records is succinctly summarized in Comment, “Business Records as an Exception to the Hearsay Rule,” 21 La. L. Rev. 449, 451 (1961).
For an excellent guide for the practitioner on laying a proper foundation for computer printouts, see Freed, Fenwick and Mc-Gonigal, “Mock Trial: Admissibility of Computerized Business Ree
It is not clear whether Kieper is unable to supply this information or whether counsel merely failed to inquire into this matter.
The court notes that “the burden of presenting an adequate foundation for receiving the evidence [is] on the part[y] seeking to introduce it rather than upon the party opposing its introduction.” United States v. Russo, supra at 1241.
Reference
- Full Case Name
- MONARCH FEDERAL SAVINGS AND LOAN ASSOCIATION, A FEDERAL ASSOCIATION DULY CHARTERED BY THE FEDERAL HOME LOAN BANK BOARD v. LENA GENSER, WIDOW AND SIDNEY GENSER
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- 3 cases
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