business records exception in New Mexico

2009The public records exception to the hearsay rule permits the admission of “[r]ecords, reports, statements or data compilations, in any form, of public offices or agencies” that set forth “the activities of the office or agency” or “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Rule ll-803(H)(l)-(2). {8} In State v. Christian, 119 N.M. 776, 778 , 895 P.2d 676, 678 (Ct.App.1995), limited on other grounds by State v. Ruiz, 120 N.M. 534,

1995In Christian, we pointed out that the business records exception to the prohibition against hearsay is “premised upon routine, trusted patterns of record generation and the confidence engendered by showing that a particular record is created and maintained in conformity with that routine.” Id. at 779, 895 P.2d at 679 .

2009The public records exception to the hearsay rule permits the admission of “[r]ecords, reports, statements or data compilations, in any form, of public offices or agencies” that set forth “the activities of the office or agency” or “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Rule ll-803(H)(l)-(2). {8} In State v. Christian, 119 N.M. 776, 778 , 895 P.2d 676, 678 (Ct.App.1995), limited on other grounds by State v. Ruiz, 120 N.M. 534,

2009The public records exception to the hearsay rule permits the admission of “[r]ecords, reports, statements or data compilations, in any form, of public offices or agencies” that set forth “the activities of the office or agency” or “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Rule ll-803(H)(l)-(2). {8} In State v. Christian, 119 N.M. 776, 778 , 895 P.2d 676, 678 (Ct.App.1995), limited on other grounds by State v. Ruiz, 120 N.M. 534,

2019See 6 Rule 11-803(6); see also Padilla v. Hay, 1995-NMCA-067 , ¶ 13, 120 N.M. 220 , 7 900 P.2d 969 (stating that if a party seeks to offer a record under the business 8 record exception, “the proponent must introduce them through a records custodian 9 or other qualified person competent to testify as to their authenticity” (internal 10 quotation marks and citation omitted)). 11 {21} Cutliff also claims that the medical records were trustworthy and thus 12 admissible based on the use of the medical records by Vis-Com during its 13 questioning of Cutliff and two experts.

2019See 6 Rule 11-803(6); see also Padilla v. Hay, 1995-NMCA-067 , ¶ 13, 120 N.M. 220 , 7 900 P.2d 969 (stating that if a party seeks to offer a record under the business 8 record exception, “the proponent must introduce them through a records custodian 9 or other qualified person competent to testify as to their authenticity” (internal 10 quotation marks and citation omitted)). 11 {21} Cutliff also claims that the medical records were trustworthy and thus 12 admissible based on the use of the medical records by Vis-Com during its 13 questioning of Cutliff and two experts.

2016See United States v. Yeley-Davis, 632 F.3d 673, 680-81 (10th Cir. 2011) (holding that an exhibit composed of authenticated cell phone records, created solely at the request of law enforcement for use in a prosecution, qualified as a business record under the federal business records exception); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st Cir. 2015) (“[E]xhibits showing selected data pulled from records that a company keeps in the ordinary course of business fall under the business records exception, even if the physical exhibits themselves were made to comply with a request from law

2016See United States v. Yeley-Davis, 632 F.3d 673, 680-81 (10th Cir. 2011) (holding that an exhibit composed of authenticated cell phone records, created solely at the request of law enforcement for use in a prosecution, qualified as a business record under the federal business records exception); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st Cir. 2015) (“[Ejxhibits showing selected data pulled from records that a company keeps in the ordinary course of business fall under the business records exception, even if the physical exhibits themselves were made to comply with a request from law

2016See United States v. Yeley-Davis, 632 F.3d 673, 680-81 (10th Cir. 2011) (holding that an exhibit composed of authenticated cell phone records, created solely at the request of law enforcement for use in a prosecution, qualified as a business record under the federal business records exception); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st Cir. 2015) (“[E]xhibits showing selected data pulled from records that a company keeps in the ordinary course of business fall under the business records exception, even if the physical exhibits themselves were made to comply with a request from law

2016See United States v. Yeley-Davis, 632 F.3d 673, 680-81 (10th Cir. 2011) (holding that an exhibit composed of authenticated cell phone records, created solely at the request of law enforcement for use in a prosecution, qualified as a business record under the federal business records exception); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st Cir. 2015) (“[Ejxhibits showing selected data pulled from records that a company keeps in the ordinary course of business fall under the business records exception, even if the physical exhibits themselves were made to comply with a request from law

2015See Rule 11-803(6) NMRA (naming this category of hearsay exceptions as “[r]ecords of a regularly conducted activity”); see also Romero, 2014-NMSC-007 , ¶¶ 31-32 (holding that a witness’s testimony and a witness’s affidavit were insufficient to establish the transfer of the note because the witnesses lacked personal knowledge of the note’s transfer, and that a witness’s reliance on a review of the business records was also insufficient to establish the note’s transfer without a specific business record having been offered and admitted under the business records exception to the hearsay rule). {

2015See Rule 11-803(6) NMRA (naming this category ofhearsay exceptions as “[rjecords of a regularly conducted activity”); see also Romero, 2014-NMSC-007 , ¶¶ 31-32 (holding that a witness’s testimony and a witness’s affidavit were insufficient to establish the transfer of the note because the witnesses lacked personal knowledge of the note’s transfer, and that a witness’s reliance on a review of the business records was also insufficient to establish the note’s transfer without a specific business record having been offered and admitted under the business records exception to the hearsay rule).

2014See State v. Cofer, 2011-NMCA-085, ¶ 17 , 150 N.M. 483 , 261 P.3d 1115 (holding that, based on the plain language of Rule 11-803(F) (2007), “it is clear that the business records exception requires some form of document that satisfies the rule’s foundational elements to bé offered and admitted into evidence and that testimony alone does not qualify under this exception to the hearsay rule” and concluding that “ ‘testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay.’ ” (citati

2014See State v. Cofer, 2011-NMCA-085, ¶ 17 , 150 N.M. 483 , 261 P.3d 1115 (holding that, based on the plain language of Rule 11-803(F) (2007), “it is clear that the business records exception requires some form of document that satisfies the rule’s foundational elements to bé offered and admitted into evidence and that testimony alone does not qualify under this exception to the hearsay rule” and concluding that “ ‘testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay.’ ” (citati

2014See Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (affirming admission of an officer’s testimony from a memorandum satisfying the requirements of a recorded recollection even if it did not satisfy the requirements of the business records exception to the hearsay rule); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979) (holding that the rule barring admission of police reports did not disqualify an officer testifying from a report of a recorded recollection that otherwise satisfied Fed.

2014See Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (affirming admission of an officer’s testimony from a memorandum satisfying the requirements of a recorded recollection even if it did not satisfy the requirements of the business records exception to the hearsay rule); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979) (holding that the rule barring admission of police reports did not disqualify an officer testifying from a report of a recorded recollection that otherwise satisfied Fed.

2014See Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (affirming admission of an officer’s testimony from a memorandum satisfying the requirements of a recorded recollection even if it did not satisfy the requirements of the business records exception to the hearsay rule); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979) (holding that the rule barring admission of police reports did not disqualify an officer testifying from a report of a recorded recollection that otherwise satisfied Fed.

2014See Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (affirming admission of an officer’s testimony from a memorandum satisfying the requirements of a recorded recollection even if it did not satisfy the requirements of the business records exception to the hearsay rule); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979) (holding that the rule barring admission of police reports did not disqualify an officer testifying from a report of a recorded recollection that otherwise satisfied Fed.

2014Id. at 68-70 (discerning a “clear legislative intent not only to exclude such documents from the scope of [Federal Rule of Evidence] 803(8) but from the scope of [Federal Rule of Evidence] 803(6) as well”).

2014Id. at 68-70 (discerning a “clear legislative intent not only to exclude such documents from the scope of [Federal Rule of Evidence] 803(8) but from the scope of [Federal Rule of Evidence] 803(6) as well”).

2004See State v. Ross, 1996-NMSC-031 , 122 N.M. 15, 26 , 919 P.2d 1080, 1091 (concluding that a statement made by the victim to her boyfriend that the defendant was holding her hostage, although admissible under the Rules of Evidence as a statement of recent perception, lacked particularized guarantees of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); State v. Austin, 104 N.M. 573, 574-76 , 725 P.2d 252, 253-55 (Ct.App.1985) (concluding that computerized private business records admitted under the business records exception as evidence of

2004See State v. Ross, 1996-NMSC-031 , 122 N.M. 15, 26 , 919 P.2d 1080, 1091 (concluding that a statement made by the victim to her boyfriend that the defendant was holding her hostage, although admissible under the Rules of Evidence as a statement of recent perception, lacked particularized guarantees of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); State v. Austin, 104 N.M. 573, 574-76 , 725 P.2d 252, 253-55 (Ct.App.1985) (concluding that computerized private business records admitted under the business records exception as evidence of

2004See State v. Ross, 1996-NMSC-031 , 122 N.M. 15, 26 , 919 P.2d 1080, 1091 (concluding that a statement made by the victim to her boyfriend that the defendant was holding her hostage, although admissible under the Rules of Evidence as a statement of recent perception, lacked particularized guarantees of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); State v. Austin, 104 N.M. 573, 574-76 , 725 P.2d 252, 253-55 (Ct.App.1985) (concluding that computerized private business records admitted under the business records exception as evidence of

2004See State v. Ross, 1996-NMSC-031 , 122 N.M. 15, 26 , 919 P.2d 1080, 1091 (concluding that a statement made by the victim to her boyfriend that the defendant was holding her hostage, although admissible under the Rules of Evidence as a statement of recent perception, lacked particularized guarantees of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); State v. Austin, 104 N.M. 573, 574-76 , 725 P.2d 252, 253-55 (Ct.App.1985) (concluding that computerized private business records admitted under the business records exception as evidence of

2014See Erickson K., 2002-NMCA-058, ¶ 22 (“[T]he [s]tate made no attempt to present documentation that might have been admissible under a recognized hearsay exception.”).

2014See Scott v. Murphy Corp., 1968-NMSC-185 , ¶ 10, 79 N.M. 697 , 448 P.2d 803 (“It is hornbook law that the decision of a trial court will be upheld if it is right for any reason.”); Rule 11-803(6) NMRA.

2014See Scott v. Murphy Corp., 1968-NMSC-185 , ¶ 10, 79 N.M. 697 , 448 P.2d 803 (“It is hornbook law that the decision of a trial court will be upheld if it is right for any reason.”); Rule 11-803(6) NMRA.

2014See State v. Johnson, 1995-NMCA-127 , ¶ 6, 121 N.M. 77 , 908 21 P.2d 770 (holding that even though the defendant did not mention the specific right 22 at issue, the “[defendants] arguments . . . were adequate to alert the trial court to the 11 1 basis for [the d]efendant’s proffer”), rev’d on other grounds, 1997-NMSC-036 , 123 2 N.M. 640 , 944 P.2d 869 . 3 {17} In what we understand to be a request that we apply the “right for any reason” 4 principle, the State also argues that it “likely would have sought to admit the 5 statements under the business records exception to the hearsay rule” had

2014See State v. Johnson, 1995-NMCA-127 , ¶ 6, 121 N.M. 77 , 908 21 P.2d 770 (holding that even though the defendant did not mention the specific right 22 at issue, the “[defendants] arguments . . . were adequate to alert the trial court to the 11 1 basis for [the d]efendant’s proffer”), rev’d on other grounds, 1997-NMSC-036 , 123 2 N.M. 640 , 944 P.2d 869 . 3 {17} In what we understand to be a request that we apply the “right for any reason” 4 principle, the State also argues that it “likely would have sought to admit the 5 statements under the business records exception to the hearsay rule” had

2014See State v. Johnson, 1995-NMCA-127 , ¶ 6, 121 N.M. 77 , 908 21 P.2d 770 (holding that even though the defendant did not mention the specific right 22 at issue, the “[defendants] arguments . . . were adequate to alert the trial court to the 11 1 basis for [the d]efendant’s proffer”), rev’d on other grounds, 1997-NMSC-036 , 123 2 N.M. 640 , 944 P.2d 869 . 3 {17} In what we understand to be a request that we apply the “right for any reason” 4 principle, the State also argues that it “likely would have sought to admit the 5 statements under the business records exception to the hearsay rule” had

2014See State v. Johnson, 1995-NMCA-127 , ¶ 6, 121 N.M. 77 , 908 21 P.2d 770 (holding that even though the defendant did not mention the specific right 22 at issue, the “[defendants] arguments . . . were adequate to alert the trial court to the 11 1 basis for [the d]efendant’s proffer”), rev’d on other grounds, 1997-NMSC-036 , 123 2 N.M. 640 , 944 P.2d 869 . 3 {17} In what we understand to be a request that we apply the “right for any reason” 4 principle, the State also argues that it “likely would have sought to admit the 5 statements under the business records exception to the hearsay rule” had

2012See Roark, 2007-NMCA- 5 074, ¶¶ 24-26 (holding that a proper foundation was laid by an employee of the 6 defendant that did not create the records, but testified regarding the procedures in 7 maintaining and generating the records); see also Kirk Co. v. Ashcraft, 101 N.M 462, 8 468, 684 P.2d 1127, 1133 (1984) (holding that sales manager was a “qualified 9 witness” to lay a foundation under the business records exception even though he 10 lacked personal knowledge of the accuracy).

2012See Roark, 2007-NMCA- 5 074, ¶¶ 24-26 (holding that a proper foundation was laid by an employee of the 6 defendant that did not create the records, but testified regarding the procedures in 7 maintaining and generating the records); see also Kirk Co. v. Ashcraft, 101 N.M 462, 8 468, 684 P.2d 1127, 1133 (1984) (holding that sales manager was a “qualified 9 witness” to lay a foundation under the business records exception even though he 10 lacked personal knowledge of the accuracy).

2011We find persuasive the Georgia appellate court’s holding that “testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay.” Ingles Mkts., Inc. v. Martin, 236 Ga.App. 810 , 513 S.E.2d 536, 538 (1999).

2011We find persuasive the Georgia appellate court’s holding that “testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay.” Ingles Mkts., Inc. v. Martin, 236 Ga.App. 810 , 513 S.E.2d 536, 538 (1999).