Counsel seeking to admit business records must lay a proper foundation, typically through a custodian of records or other qualified witness who can testify to the record-keeping practices of the organization. Alternatively, a certification under Rule 902(11) or (12) may be used. The opponent may challenge admissibility by showing that the source of information or method of preparation indicates a lack of trustworthiness. Courts frequently encounter disputes about whether records prepared in anticipation of litigation qualify, as such records may lack the routine reliability that justifies the exception. Hospital records, bank statements, invoices, and personnel files are common examples.
Attorney: "Ms. Chen, in your role as records custodian, is it the regular practice of Mercy Hospital to record patient vital signs every four hours?" Witness: "Yes, that is our standard protocol." Attorney: "And are these entries made by nurses with personal knowledge at or near the time of observation?" Witness: "Yes." Attorney: "Your Honor, I move to admit Exhibit 14 under the business records exception."
Opposing Counsel: "Objection, Your Honor. This incident report was prepared three weeks after the event specifically because of anticipated litigation. It lacks the routine reliability that underpins Rule 803(6)."
Judge: "The certification under Rule 902(11) is sufficient. The records are admitted without the need for live testimony from the custodian."
Students often overlook the trustworthiness clause in Rule 803(6). Even if all foundational elements are met, a record can be excluded if the circumstances of its preparation suggest untrustworthiness — particularly records created in anticipation of litigation rather than in the ordinary course of business.
Palmer v. Hoffman, 318 U.S. 109 (1943)
Held that an accident report prepared by a railroad company primarily for litigation purposes did not qualify as a business record because it was not made "in the regular course" of the railroad's transportation business.
Johnson v. Lutz, 253 N.Y. 124 (1930)
Established that a business record is inadmissible if the information recorded came from a person who was not acting in the regular course of business, influencing the development of the personal knowledge requirement in the federal rule.
United States v. Vigneau, 337 F.3d 62 (1st Cir. 2003)
Held that wire transfer records qualified as business records where the custodian testified about the bank's record-keeping practices, even though the specific person who entered the data could not be identified.
What foundation is needed to admit business records under Rule 803(6)?
The proponent must show: (1) the record was made at or near the time of the event, (2) by someone with knowledge or from information transmitted by a person with knowledge, (3) kept in the course of a regularly conducted business activity, and (4) making the record was a regular practice of that activity. This can be established through a custodian's testimony or a Rule 902(11) certification.
Can business records be admitted without live testimony from a custodian?
Yes, under Rules 902(11) and 902(12), business records can be self-authenticated through a written certification by the custodian or other qualified person, without the need for live testimony at trial. The opposing party must receive advance notice and an opportunity to challenge the records.
Are records prepared for litigation admissible under the business records exception?
Records prepared primarily in anticipation of litigation generally do not qualify under Rule 803(6) because they lack the routine reliability that justifies the exception. The trustworthiness clause allows courts to exclude records whose circumstances of preparation suggest they were created for litigation purposes rather than ordinary business operations.
Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. ...
Authentication is the process of proving that an item of evidence is what it purports to be. The pro...
Foundation refers to the preliminary showing that must be made before evidence is admitted. It estab...
The best evidence rule (more accurately called the "original document rule") requires that when the ...
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