Intro to the Federal Rules of Evidence - 62

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.