7. Business Records (FRE 803(6))
a. Justification
Special reliability is provided by the regularity with which business records are kept, their use and importance in the business, and the incentive of the employees to keep accurate records:
a duty to make an accurate record as part of a continuing job.
b. Definition of business
The FRE provides it in a broad way, which includes “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
c. Requirements
i) Entries made in regular course of business
“[K]ept in the course of a regularly conducted business activity, and … it was the regular practice of that business activity to make the [record]”
1) Business activity
The record must have been maintained in conjunction with a business activity.
2) Records prepared for litigation – court’s discretion
This exception rule does not apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Thus any records will be excluded if it is found to be unduly self-serving or otherwise untrustworthy.
For example, where the record in an accident report prepared in anticipation of litigation, the trial judge has discretion under the rule to exclude the record. See Palmer v. Hoffman, 318 U.S. 109 (1943).
3) Entrant under duty to record
The entrant must have some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). This duty may be either public (statutory, etc.) or private (contractual, including duties imposed by an employer).
ii) Personal knowledge
The record must be “made… by, or from information transmitted by, a person with knowledge….”
An original source need not be the person who is actually making the entry.
1) Informant must be under business duty to convey information
When the informant with personal knowledge is an outsider, having little or no connection with the business whose records are being offered in evidence, this exception does not apply. But the document may be admitted under any of other exceptions, such as party-admission, or public records exception.
iii) Entry made near time of event
“… made at or near the time….”
The entry must have been made at or near the time of the transaction while the entrant’s
knowledge of the facts was still fresh.
iv) Trustworthiness
The sources of information and other circumstances must be such as to indicate its trustworthiness.
d. Authentication
i) Foundation witness’s testimony
“[A]ll as shown by the testimony of the custodians or other qualified witness”
It is not necessary to call as a witness each person who participated in the making of the record. All that is required is that there be a witness who know enough about a particular record-keeping process to be able to testify that: (1) it was the business’ regular practice to make such a record; (2) the particular record in question was made in the regular course of business on the personal knowledge of the recorder or someone reporting to him; (3) the person with the first-hand knowledge was acting in the regular course of the business; and (4) the entries were made at or near the time of the transaction.
ii) Certification
“[B]y certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification,”
A foundation witness is not necessary to authenticate the record (i.e., the record will be self-authenticating) if the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception.
Normally, the original or first permanent record of the transaction must be introduced, but where the records to be introduced are voluminous, summaries or compilations may be admitted.
Monday, April 30, 2012
Intro to the Federal Rules of Evidence - 61
6. Recorded Recollection (FRE 803(5))
a. Typical applications
1) an employee’s writing on inventory
2) an insurance company accident investigator’s accident report
3) a police officer’s investigation report
4) an admitting nurse’s notes about a patient’s symptoms and the patient’s comments
regarding pain.
b. Rationale
A writing made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand, despite the fact that x-x is curtailed.
c. Requirements
i) First-hand knowledge
The memo must relate to something of which the witness once had first-hand knowledge.
ii) Impaired recollection
“… insufficient recollection to enable the witness to testify fully and accurately…”
If the witness’ memory at the time of trial is perfectly clear about the events, the earlier record may not be introduced. The witness must suffer some impairment of his memory of the events, but this impairment need not be total.
iii) Made or adopted by W
The writing must have been made by the witness or made under his direction or adopted by the witness.
iii) Timely made – when fresh in memory
“… when the matter was fresh in the witness’ memory….”
A record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.
iv) Accuracy when written
“… to reflect [the witness’] knowledge correctly….”
This phrase means that the witness must testify either that he remembers making an accurate recording of the event in question although he no longer remembers the facts recorded, that he is confident he would not have written or adopted some description of the facts unless that description truly described his observations at the time.
v) Miscellaneous
1) Inadmissible as exhibit
The record is allowed only to be read out loud to the jury, unless offered by an adverse party
2) Recorded recollection v. present collection refreshed (FRE 612)
The use of the present recollection refreshed technique is not an exception to the hearsay rule at all – since the only thing that goes into evidence is the witness’ present testimony, and not the document, there is simply no out-of-court declaration.
Where an attempt at refreshing recollection has proven to be unsuccessful, the 803(5) exception – whereby W reads actual parts of the document into evidence- may be available.
a. Typical applications
1) an employee’s writing on inventory
2) an insurance company accident investigator’s accident report
3) a police officer’s investigation report
4) an admitting nurse’s notes about a patient’s symptoms and the patient’s comments
regarding pain.
b. Rationale
A writing made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand, despite the fact that x-x is curtailed.
c. Requirements
i) First-hand knowledge
The memo must relate to something of which the witness once had first-hand knowledge.
ii) Impaired recollection
“… insufficient recollection to enable the witness to testify fully and accurately…”
If the witness’ memory at the time of trial is perfectly clear about the events, the earlier record may not be introduced. The witness must suffer some impairment of his memory of the events, but this impairment need not be total.
iii) Made or adopted by W
The writing must have been made by the witness or made under his direction or adopted by the witness.
iii) Timely made – when fresh in memory
“… when the matter was fresh in the witness’ memory….”
A record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.
iv) Accuracy when written
“… to reflect [the witness’] knowledge correctly….”
This phrase means that the witness must testify either that he remembers making an accurate recording of the event in question although he no longer remembers the facts recorded, that he is confident he would not have written or adopted some description of the facts unless that description truly described his observations at the time.
v) Miscellaneous
1) Inadmissible as exhibit
The record is allowed only to be read out loud to the jury, unless offered by an adverse party
2) Recorded recollection v. present collection refreshed (FRE 612)
The use of the present recollection refreshed technique is not an exception to the hearsay rule at all – since the only thing that goes into evidence is the witness’ present testimony, and not the document, there is simply no out-of-court declaration.
Where an attempt at refreshing recollection has proven to be unsuccessful, the 803(5) exception – whereby W reads actual parts of the document into evidence- may be available.
Intro to the Federal Rules of Evidence - 60
5. Statements for purposes of medical diagnosis or treatment (FRE 803(4))
a. Justification
A patient tends to tell a truth.
Courts have been more willing to accept such statements into evidence than in the case of statements made to non-doctors.
b. Present or past symptoms
Statements need not be in connection with a present bodily condition. Statements about past pain, past symptoms, or even past events that have given rise to pain or symptoms, are all admissible, if made to a physician in connection with treatment.
c. Causes / external sources of the pain, symptoms or other condition
“[S]tatements made for purposes of medical diagnosis or treatment and describing … the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Even statements that relate to the cause of the pain, symptoms, or other condition will be admitted, if they seem reasonably related to treatment.
But statements about fault will ordinarily not qualify. For instance, a patient’s statement that he was struck by a car would qualify but not his statement that the car was driven through a red light (ACN). Similarly, a patient’s statement that he was shot would be admissible, but a statement that he was shot by a white man would not be.
d. Statements by third persons
The statement may be one made by a third person, so long as the statement is made for the purpose of getting treatment or diagnosis for the patient.
“He was hit from the rear by a speeding vehicle.”
“I was just passing by when I saw him get hit by a speeding bicycle.”
e. Statements to third persons
Statements to hospital attendants, ambulance drivers, or even members of the family might be included (ACN).
f. Physician who does not treat but testifies
The exception rule applies to statements made to a physician whose examination is made solely in order to enable him to testify at trial (ACN). The rationale is that the evidence will come before the jury anyway, as the basis of his opinion.
a. Justification
A patient tends to tell a truth.
Courts have been more willing to accept such statements into evidence than in the case of statements made to non-doctors.
b. Present or past symptoms
Statements need not be in connection with a present bodily condition. Statements about past pain, past symptoms, or even past events that have given rise to pain or symptoms, are all admissible, if made to a physician in connection with treatment.
c. Causes / external sources of the pain, symptoms or other condition
“[S]tatements made for purposes of medical diagnosis or treatment and describing … the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Even statements that relate to the cause of the pain, symptoms, or other condition will be admitted, if they seem reasonably related to treatment.
But statements about fault will ordinarily not qualify. For instance, a patient’s statement that he was struck by a car would qualify but not his statement that the car was driven through a red light (ACN). Similarly, a patient’s statement that he was shot would be admissible, but a statement that he was shot by a white man would not be.
d. Statements by third persons
The statement may be one made by a third person, so long as the statement is made for the purpose of getting treatment or diagnosis for the patient.
“He was hit from the rear by a speeding vehicle.”
“I was just passing by when I saw him get hit by a speeding bicycle.”
e. Statements to third persons
Statements to hospital attendants, ambulance drivers, or even members of the family might be included (ACN).
f. Physician who does not treat but testifies
The exception rule applies to statements made to a physician whose examination is made solely in order to enable him to testify at trial (ACN). The rationale is that the evidence will come before the jury anyway, as the basis of his opinion.
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