CPL § 190.30, which governs the rules of evidence before the Grand Jury, was recently amended to permit the introduction of certain business records without the need for testimony from custodians of records. The amendment was made by L. 2008, c. 279, § 14, and took effect August 1, 2008.
The amendment created section 8 of the statute. It permits the introduction of two types of certified business records. The first is a person's "subscription to and charges and payments for
communication equipment and services," including, but not limited to, telephone and Internet service records. The statute does not apply to "recorded conversations or images
communicated thereby." The second category of records pertains to "financial transactions, and a person's ownership or possessory interest
in any account, at a bank, insurance company, brokerage, exchange or
banking organization." Importantly, the statute does not apply to records prepared by law
enforcement agencies or by any entity in anticipation of
litigation. Note, however, that CPL § 190.30(2) permits the introduction of certain public records through a similar certification procedure.
To be admitted, the records must be accompanied by a certification listing the records, attesting that the declarant is a custodian of records, and otherwise establishing the foundation for business records (kept in the course of business, contemporaneous with the act, and duty to maintain the records).
Apparently this statute was enacted to alleviate a burden on cable, telephone, and Internet companies, as well as banks and other financial institutions. These businesses previously had to send custodians of records to testify before the Grand Jury in identity theft, cable service theft, and other cases. Since these companies are sometimes located out-of-state or in an otherwise inconvenient location, the Legislature now provides that these routine witnesses can "testify" through a sworn certification. This saves considerable expense and inconvenience. Since a custodian's testimony is usually routine and uneventful, defendants are not prejudiced by the amendment. (LC)