July 31, 2017

Tips for Getting City and State Records into Evidence

Connor Choate

When attempting to get public records into evidence, litigators should not assume city or state records may be admissible for hearings and trials through “judicial notice.” Most judges would sustain an objection based on authenticity. The better approach is through an Affidavit of Records Custodian through Rules 44 and 45. An Affidavit of Records Custodian primarily allows the custodian of the requested records to send the records to the court to be admitted into evidence without testifying to the validity of the requested records in person.

Litigators should first, of course, issue a subpoena to the relevant party or custodian requesting the needed documents. The custodian of the requested documents can then respond to the subpoena, with the relevant documents, by registered or certified mail or personal delivery, in lieu of testifying in person.

Wary litigators should always consult their state and local rules for variances from the federal rules. For example, according to Rule 45 of the North Carolina Rules of Civil Procedure, a subpoenaed custodian of public records must include in their response to the relevant court, alongside certified copies of the requested documents, an Affidavit of Records Custodian and a copy of the subpoena. The Affidavit of Records Custodian itself should contain testimony that “the copies are true and correct copies and that the records were made and kept in the regular course of business” (N.C. Rules of Civil Procedure, Rule 45 § (c)(2)). Should the custodian not have the requested records, they are required, under the same rule, to submit an affidavit stating so.

An Affidavit of Records Custodian allows litigators to have public records and documents smoothly entered into evidence.

Connor Choate

Austin Law Firm in Raleigh, North Carolina.