Section 16.36 Business Records

• Library: Evidence 2017

A. (§16.36) Business Records

The hearsay exception for certain types of business records—primarily books of account—has been recognized since at least the time of 3 William Blackstone, Commentaries on the Laws of England: Of Private Wrongs 368–69 (Univ. of Chicago Press facsimile ed. 1979). Today, the admission of business records as an exception to the hearsay rule is governed by statute, and it covers virtually every type of regularly recorded activity by private businesses, government, police, and medical professionals. See § 490.670, RSMo 2016. Missouri adopted The Uniform Business Records As Evidence Law,” §§ 490.660–490.690, RSMo 2016, in 1949.

Section 490.680, RSMo 2016, provides:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

Under this exception, the focus is on the character of the records that have the earmarks that experience has shown make these documents trustworthy. C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 141 (Mo. App. S.D. 2004); Jones v. Union Pac. R.R. Co., 508 S.W.3d 159 (Mo. App. S.D. 2016). The principal characteristics of business records that make them sufficiently trustworthy to be admitted despite their hearsay character are found in the circumstances of the document’s preparation. It is the regularity of the preparation—the notion that the document is routinely prepared for business purposes—that makes the motive to falsify it unlikely. Moreover, the document must have been prepared at or near the time of the act, condition, or event recorded—thus giving additional assurance that the document accurately recorded the fact for which it is offered.

A final check on the accuracy is the requirement stated in some cases (but not expressly found in the statute) that the original entry into the document be made by a person with personal knowledge of the act, condition, or event or based on information from a person with a business duty to transmit it to the person making the entry. SeeState v. Boyington, 544 S.W.2d 300, 305 (Mo. App. W.D. 1976) (citing Mucci v. LeMonte, 254 A.2d 879, 881 (Conn. 1969)); State v. Jordan, 664 S.W.2d 668, 672 (Mo. App. E.D. 1984). CompareCACH, LLC v. Askew, 358 S.W.3d 58, 64–65 (Mo. banc 2012) (a failure to testify as to “personal knowledge regarding the procedures used” meant that the employee was not a “qualified witness” under the statute), with Ford Motor Credit Co. v. Harris, 386 S.W.3d 864, 870 (Mo. App. S.D. 2012) (personal knowledge of the “mode of preparation” is not required). The custodian of the record cannot meet the statutory requirements “by simply serving as [a] ‘conduit to the flow of records.’” Jones, 508 S.W.3d at 164 (quoting CACH, 358 S.W.3d at 63). But it is clear that the proponent of the document does not need to identify, locate, and produce every person who made the original entries. Discover Bank v. Smith, 326 S.W.3d 120 (Mo. App. S.D. 2010) (credit card records not at or near the time of the record); Med. Shoppe Int’l, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo. App. E.D. 1994) (a credit card record is admissible). Boyington, 544 S.W.2d at 306, justifies proof of the personal knowledge of these persons, however, by reliance on a clause near the end of the opinion that requires the trial court to be satisfied as to the sources of information before the document will be admitted. Nonetheless, it would be an unusual case when this circumstance could not be met, and it certainly...