NOTES ON RECENT (AND FUTURE) APPELLATE DEVELOPMENTS
(Posted July 31, 2018) As we’ve seen from the last two SCV opinion days, there are no summer doldrums in the Virginia appellate world. Let’s peer around and see what’s happening.
Important evidentiary ruling from CAV
As society evolves, the law has to keep pace. Today, the Court of Appeals of Virginia hands down a published opinion that addresses the business-records exception for documents stored in the cloud. The case is Melick v. Commonwealth, involving a grand-larceny conviction from Hampton.
Melick stood charged with stealing jewelry and selling it to a local buyer, a store that wasn’t quite a pawn shop because it didn’t make loans. But the shop did follow a Hampton ordinance that required it to gather certain identifying information from any person who comes in to sell property. The store then uploads the information to a website named LeadsOnline, which gathers information and makes it available to police departments, so they can investigate thefts.
That website had nine hits for Melick, including the purloined jewelry. As his bench trial, Melick objected to the introduction of inculpatory printouts from the site. The printouts contained photos of Melick and listings of what he had sold at the store. The prosecution insisted that the documents, while admittedly hearsay, were nevertheless admissible under the business-records exception in Rule 2:803(6).
While there are several decisional goodies in Judge Russell’s opinion for a unanimous panel, the primary focus of this opinion is on the admissibility of the printouts. The trial court had admitted them, and today the CAV panel affirms. The key holdings include:
- There’s enough evidence in the record to enable the trial judge to find that the records were made at or near the time of the sale;
- The description of the process satisfies the “made and kept in the course of a regularly conducted activity of a business” requirement;
- The store regularly made the purchase records for each transaction;
- A “custodian or another qualified witness” testified to authenticate the records; and
- There’s nothing untrustworthy about the process or the records.
Of these, a couple of items are worth particular individual mention. First, the court approves the storage of records offsite – here, at an extrinsic website. These are still the store’s records, even though LeadsOnline maintains it. (The phrase “made and kept” doesn’t require that the records be physically kept by the person or business making them.) The fact that neither store witness who testified at trial claimed to be the custodian doesn’t disqualify the documents, because the rule allows “another qualified witness” to do so, and the panel finds that these two witnesses’ testimony was ample for that purpose.
Melick also objected because neither of the two clerks could specifically remember uploading the information to the LeadsOnline website. Judge Russell offers this effective riposte:
Melick’s fixation on their lack of specific memories is misplaced because one of the main rationales for the business records exception is that an individual clerk will record the particulars of a transaction accurately when it occurs but that he or she will have no recollection of the specifics of the transaction, days, months, or even years later.
Y’know, the man has a point …
Appellate summits draw nigh
I’ve mentioned before the two appellate summits this autumn. Details are emerging:
The Virginia Appellate Summit will convene on September 20 at McGuireWoods’s office in downtown Richmond. It’s an all-day program that should be approved for six hours of MCLE credit. This is advanced-level training, and features some of the best appellate lawyers in Virginia on the faculty, plus enough judges to keep us behaving responsibly. I’m lucky to be sharing a segment with Justice Steve McCullough and my pal Robert Loftin, with Erin Ashwell moderating. Here’s a link to the registration page, on which you’ll find a link for the program agenda.
If you’re serious about your appellate practice here in the Commonwealth, you need to be at this one. All of your competitors will be.
A bit later down the road, the ABA Appellate Summit will meet for four days in Atlanta, November 8-11. This is the Virginia Summit on steroids. Typically around 400 appellate judges and lawyers from around the nation attend, and the programming is superb. You can get details and register here.
I hope to see you at both summits.
SCV road shows
I always enjoy publicizing this each year: Two writ panels of the Supreme Court of Virginia will convene in locations outside Richmond on August 30. The panels will meet in Nelson County (Lovingston) and here in sunny Virginia Beach. There will, as usual, be one panel in the Supreme Court Building the previous afternoon.
These traveling panels, which court insiders lovingly call road shows, offer a wonderful opportunity to see the court in action, even if you’re a long way from Richmond. Because writ arguments are just ten minutes long, you can stay for just two hours and see perhaps a dozen oral arguments. You’ll get a feeling for how writ panels operate and how energetic the justices are at questioning. You’ll see some excellent arguments, and maybe a couple that … are useful in a negative-teaching sort of way. Go! It’s highly educational.
You may have wondered if the court ever sets an argument for a remote location, far from appellate counsel’s office. The Chief Staff Attorney’s Office, which calendars all writ arguments throughout the year, has a heart; they try to set the argument for the location that’s closest to the office of lead counsel for the appellant.