Hearsay and circumstances of its admissibility - Business records

Learning Outcomes

After reading this article, you will be able to identify when business records are admissible as an exception to the hearsay rule, explain the fundamental requirements for admissibility, distinguish between admissible and inadmissible records, and apply these principles to MBE-style questions. You will also recognize common exam traps and confidently answer questions on business records hearsay.

MBE Syllabus

For MBE, you are required to understand the rules governing hearsay and its exceptions, especially as they relate to business records. This article covers:

• The definition and rationale of the business records hearsay exception.
• The fundamental requirements for admitting business records.
• When business records are inadmissible due to lack of trustworthiness or improper basis.
• The distinction between business records and records prepared for litigation.
• The use of business records in both civil and criminal cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a requirement for a business record to be admissible under the hearsay exception?
   1. The record was made at or near the time of the event.
   2. The record was made by someone with personal knowledge.
   3. The record was prepared in anticipation of litigation.
   4. The record was kept in the regular course of business.
2. A hospital record includes a nurse’s note about a patient’s symptoms. The nurse was on duty and made the entry during her shift. Is this note likely admissible as a business record?
   1. Yes, if the entry was made as part of the hospital’s regular practice.
   2. No, because the nurse was not a doctor.
   3. No, because medical records are never admissible.
   4. Yes, but only if the nurse testifies in court.
3. Which of the following is most likely to render a business record inadmissible?
   1. The record was made by an employee in the regular course of business.
   2. The record was made at the time of the event.
   3. The record was prepared specifically for use in a lawsuit.
   4. The record was made by a person with a business duty to report.

Introduction

Business records are a frequent source of evidence in both civil and criminal cases. The Federal Rules of Evidence provide a specific exception to the hearsay rule for business records, but only if strict fundamental requirements are met. Understanding when and how business records are admissible is essential for the MBE.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.

Key Term: Business Records Exception
A hearsay exception allowing certain records of regularly conducted business activity to be admitted as evidence if specific requirements are satisfied.

The Rationale for the Business Records Exception

The business records exception is based on the idea that businesses have a strong incentive to keep accurate records as part of their regular operations. Such records are generally considered reliable, provided they are created and maintained in the ordinary course of business and not for litigation purposes.

Requirements for Admissibility

For a business record to be admissible under the hearsay exception, all of the following must be established:

1. Regular Course of Business: The record was made as part of a regularly conducted business activity.
2. Regular Practice: Making such a record was a regular practice of that business.
3. Timing: The record was made at or near the time of the event it describes.
4. Personal Knowledge: The information was supplied by someone with personal knowledge who had a business duty to report.
5. Basis: A qualified witness (such as a custodian or other person familiar with the record-keeping) must testify to these supporting facts, or a certification must be provided.
6. Trustworthiness: The source of information and the method or circumstances of preparation must not indicate a lack of trustworthiness.

Key Term: Basis (for Business Records)
The set of facts that must be established before a business record can be admitted as a hearsay exception.

When Business Records Are Inadmissible

Records prepared primarily for litigation, such as accident reports made after an incident with the expectation of a lawsuit, are generally not admissible under the business records exception. The rationale is that such records lack the reliability of records made in the ordinary course of business.

Key Term: Records Prepared for Litigation
Documents created mainly to support a party’s position in a lawsuit, not as part of regular business activity.

Who Must Make the Record?

The record must be made by, or from information transmitted by, someone with a business duty to report. Information from outsiders (who are not under a business duty) generally renders the record inadmissible for its truth unless another hearsay exception applies.

Authentication and Certification

A business record must be authenticated, usually by a custodian or other qualified witness, or by a written certification. The witness does not need to have personal knowledge of the contents, but must be familiar with the record-keeping process.

Criminal Cases and Law Enforcement Records

In criminal cases, police reports and similar law enforcement records are generally not admissible against the accused under the business records exception if they contain observations or opinions of officers, due to confrontation clause concerns.

Worked Example 1.1

A trucking company keeps daily logs of all deliveries. After an accident, the company’s logbook is offered to show that a delivery was made at a certain time. The log was made by the dispatcher as part of her regular duties, at the end of each day.

Is the logbook entry admissible as a business record?

Answer: Yes. The log was made in the regular course of business, at or near the time of the event, by someone with a business duty to report, and a custodian can testify to these facts.

Worked Example 1.2

A company’s safety manager prepares a detailed report about an accident, including interviews with employees and conclusions about fault, specifically to defend against a lawsuit.

Is this report admissible as a business record?

Answer: No. The report was prepared in anticipation of litigation, not in the regular course of business, and thus does not qualify for the business records exception.

Exam Warning

Business records are not automatically admissible. If the record was prepared mainly for litigation, or if the source of information is an outsider not under a business duty, the record will likely be excluded. Always check the purpose and source.

Revision Tip

On the MBE, look for facts showing when, why, and by whom the record was made. If the record was created for a lawsuit, or if the information comes from an outsider, it is probably inadmissible.

Key Point Checklist

This article has covered the following key knowledge points:

• The business records exception allows certain records to be admitted despite the hearsay rule.
• Admissibility requires regular business practice, timely creation, personal knowledge, and proper basis.
• Records prepared for litigation or based on outsider information are generally inadmissible.
• Police reports are usually inadmissible against the accused in criminal cases.
• The custodian or qualified witness must authenticate the record or provide certification.

Key Terms and Concepts

• Hearsay
• Business Records Exception
• Basis (for Business Records)
• Records Prepared for Litigation