Section 6.4 Custodian Must Testify as to the Mode of Preparation and Identity of the Record

• Library: Sources of Proof (2014 Ed.)

1. (§6.4) Custodian Must Testify as to the Mode of Preparation and Identity of the Record

Under the business records exception to the hearsay rule, documents may be introduced into evidence without the personal appearance of the person who prepared them. Hoodco of Poplar Bluff, Inc. v. Bosoluke, 9 S.W.3d 701, 703 (Mo. App. S.D. 1999) (citing Helton v. Dir. of Revenue, State of Mo., 944 S.W.2d 306, 309 (Mo. App. W.D. 1997)). Instead, for the record to be admissible as a business record, the “custodian” of the record or another “qualified witness” must testify as to its identity and mode of preparation. Section 490.680, RSMo 2000; see also State ex rel. Hobbs v. Tuckness, 949 S.W.2d 651, 654 (Mo. App. W.D. 1997) (relying on a definition of “custodian” as a person who has custody of property, and defining “custody” as the care and control of something). Section 490.692, RSMo 2000, authorizes the custodian’s testimony to be by affidavit. See also §6.13, infra.

A witness is qualified to testify regarding a business record if that witness has sufficient knowledge of the business operations and methods of record-keeping to give the records probative value. Estate of West v. Moffatt, 32 S.W.3d 648, 653 (Mo. App. W.D. 2000); see also Stivers Lincoln-Mercury, Inc. v. Abbott, 796 S.W.2d 923, 925 (Mo. App. E.D. 1990) (the moment the witness saw and passed judgment on the business record’s correctness, they became for that person correct records). While it is not necessary to show that each individual page of the record complied with the statutory requirements, the proponent should establish what procedures were followed in preparing records of the type sought for admission. State v. Atchison, 950 S.W.2d 649, 654–55 (Mo. App. S.D. 1997).

In Rossomanno v. Laclede Cab Co., 328 S.W.2d 677 (Mo. banc 1959), the Supreme Court of Missouri held that the witness was competent to authenticate a business record even though she was not employed at the business at the time of its creation. Id. at 683. Furthermore, the Court stated that personal knowledge was not needed if, in the opinion of the court, the sources of information were such as to justify the record’s admission. Id.

Rossomanno also reaffirmed that a record can be introduced into evidence as a business record regardless of whether its creator is available for trial. Id. at 682 (“The law recognizes that records made and relied upon in the regular course of business may be regarded as trustworthy without verification of all persons who contributed to them.”); see also Hoodco, 9 S.W.3d at 703. In Rossomanno, the doctor who prepared the records was available at the time of trial, but the court permitted his office employee to identify his records in court. Rossomanno, 328 S.W.2d at 682.

In State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997), the issue was whether a prison visitor card was admissible as a business record. The Supreme Court held that the custodian of records for the Department of Justice was a competent “custodian” because he maintained visitor logs for the prison. Id. Additionally, the custodian testified...