§ 33.10 Business Records: FRE 803(6)
| Jurisdiction | United States |
Rule 803(6) recognizes a hearsay exception for records of regularly conducted activities.102 Rule 803(7) recognizes an exception for the absence of such records. Many public (government) records also satisfy the requirements of the business records exception; the opposite, however, is not true.103
Rationale. The exception is based on an assumption of self-interest; most businesses cannot operate for long without accurate records. The federal drafters echoed this rationale, writing that the reliability of business records "is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation."104 The exception began as the common law "shop book" rule and later was codified by statute—for example, the Uniform Business Records as Evidence Act. The federal rule builds on these prior codification efforts.
Requirements. Rule 803(6) requires: (1) a record of an act, event, condition, opinion, or diagnosis, (2) made at or near the time of the event recorded, (3) based on firsthand knowledge (or from information transmitted by a person with such knowledge), (4) kept in the course of the regularly conducted activity, (5) prepared as a regular practice, (6) as shown by the testimony of the custodian or other qualified witness or as provided by Rules 902(11), 902(12), or statute, (7) unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
"Regularly conducted activity" defined. The rule covers more than businesses. Organizations, occupations, and callings of every kind, whether or not for profit, come within the rule. Thus, the rule encompasses "schools, churches and hospitals."105 The records of an individual may be admissible if regularly kept and if not merely a personal or household record.106 Records prepared for a criminal enterprise may qualify under Rule 803(6).107
"Records" defined. Rule 101(b)(4) defines records to include memoranda, reports, or data compilations in any form. The federal drafters anticipated the widespread use of computer-generated records,108 and the federal courts have routinely admitted them.109
[A] Regular Practice; "Routine" Records
The rule requires that the record be the product of "the regular practice of that activity,"110 typically meaning that the record arises from a routine practice. Records that are not regularly prepared do not satisfy the reliability rationale underlying the exception. A document not a part of any system of recording is not admissible.111
[B] Acts, Events, Conditions, Opinions, and Diagnoses
Rule 803(6) specifies that the record concern acts, events, conditions, opinions, or diagnoses. Including "opinions" and "diagnoses" expanded upon the rule's statutory predecessors. A medical diagnosis must be made by a qualified person.112 Inevitably, courts have to draw a line between a routine diagnosis and a more speculative diagnosis. An opinion that would not be admissible at trial under Rule 702, which governs expert testimony, should not be admitted simply because it was written in a medical record. A compound fracture diagnosis is one thing, the cause of some cancers is quite another.
[C] Time Requirement
Under Rule 803(6), the record must have been "made at or near the time" of the event recorded. The time requirement is one of the conditions that ensures the reliability of business records.113 It is satisfied if the data was recorded reasonably near the time of the event.114 With computer records, it is the time the entry is made, rather than the time a printout is made, that is controlling. As one court noted, "[t]he printouts themselves may have been made in preparation for litigation, but the data contained in the printouts was not so prepared. That information was recorded in Medicaid claim forms by Sanders or his employees shortly after Sanders supposedly filled the prescriptions, and Southwestern promptly recorded the information in a form acceptable to TDHR computers."115
[D] Firsthand Knowledge
The record must have been made (1) by a person with knowledge of the matter recorded or (2) from information transmitted by a person with such knowledge. "In light of the complexities of modern business, direct proof of actual knowledge of the person making the record or providing the information is not required, and the requisite knowledge may be inferred from the fact that it was someone's business to obtain such information."116
This provision does not require that the "person with knowledge" be produced at trial or even identified. Moreover, the witness (e.g., custodian) who lays the foundation for admissibility at trial is not required to have firsthand knowledge of either the recording or the underlying event. (See below.)
[E] Double Hearsay
Multiple-person in-house records. The firsthand knowledge requirement presents no problem when the person making the record personally observed the event. The difficultly arises when the supplier of information does not make the record but transmits the information to another person (the recorder) who makes the record. If both the supplier and recorder are part of the business, the record is admissible; the supplier is under a business duty to accurately transmit the information, and the recorder is under a duty to accurately make the record. The recorder need not have firsthand knowledge of the event. Stated another way, the exception incorporates a double hearsay component.
Business duty requirement. If the supplier of the information is not under a business duty to transmit that information, the record is typically inadmissible.117 The trustworthiness guarantee that supports the exception is missing. Although the business duty requirement is not explicitly stated in the rule, it is consistent with the rule's underlying rationale—that accuracy should be assumed only for persons under a business duty.118Furthermore, the federal drafters cited the leading case on the issue, Johnson v. Lutz,119which held that an accident report prepared by a police officer based on information supplied by bystanders (with no business duty) was inadmissible.120
Rule 805. If the supplier of the information is not under a business duty to transmit the information, the record may nevertheless be admissible if the supplier's statement falls within another hearsay exception. This situation presents a double hearsay problem, and Rule 805 governs admissibility. For example, if the statement by the supplier is made for the purpose of medical treatment and is recorded in a hospital record, the statement may...
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