Chapter 9

• Jurisdiction: New York

CHAPTER NINE

DOCUMENTARY EVIDENCE

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DOCUMENTARY EVIDENCE§ 9.0

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[9.0] I. HEARSAY

[9.1] A. Overview

Hearsay evidence is an out-of-court declaration, whether oral or con-

tained in a document, that is offered in court for the truth of its contents.

Hearsay evidence may come from a witness who can be cross-examined,

but only as to whether he or she heard or saw the statement or action and

not as to whether the statement is accurate or truthful; the declarant must

take the stand for that.

Certain hearsay is allowed in evidence because there is little chance it

will have been fabricated. The most common exceptions are business rec-

ords, which are discussed below; model questions for the introduction of

such evidence are set forth in the last part of this chapter.

[9.2] B.Business Records Exception

Inevitably, there will come a time in almost every trial when a witness

will be asked to testify about events recorded in a document or report.

Perhaps the witness will be a medical examiner who will testify about the

results of an autopsy, or a doctor who will describe injuries and their treat-

ment, or a ballistics expert or fingerprint analyst. Occasionally, the witness

will use a report to refresh his or her recollection, and the report will be

marked as an exhibit for identification. But more often than not, the docu-

ment will be received in evidence and the witness will testify from it.

Accordingly, important procedural issues must be resolved before a docu-

ment can be admitted into evidence. The importance of proper foundation

testimony cannot be overstated. If done improperly, or even ignored, the

document will be rejected by the court.

One fundamental issue should not be overlooked when offering a busi-

ness record into evidence: An attorney must establish that the record is

evidence that would be admissible if the person who prepared the record

were called to testify. If the document is irrelevant or constitutes hearsay,

or its prejudicial effect would outweigh its probative value, then it is inad-

missible, even though the record is otherwise a business record.

The proponent of a business record should, before offering it into evi-

dence, consider, in addition to other relevant issues, the following possi-

ble objections: (1) the exhibit is not part of the business record; (2) the

exhibit is not a regularly made business record; (3) the record contains