Also known as: business records exception · business record exceptions · business records exceptions · hearsay exception business records · FRE 803(6)
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception that permits admission of a record of an act or event when the record was made at or near the time by a person with knowledge, kept in the course of a regularly conducted business activity, and made as a regular practice of that activity. The exception does not apply to records prepared primarily in anticipation of litigation rather than in the ordinary conduct of the enterprise's business. An entry also fails the exception when it rests on information from an informant who had no business duty to report the facts.
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Bayside Shipping's safety officer prepared a detailed accident report after a crane collapse injured worker Byron Bishop. The report followed the company's standard form but was created immediately after the company received notice of Bishop's impending lawsuit. At trial the court excluded the report under the business record exception because its primary purpose was to prepare for litigation rather than to document routine operations.
In a sexual assault prosecution, the state called an expert who relied on a DNA profile report prepared by an outside laboratory. The report was generated in the ordinary course of the lab's testing work. The court permitted the expert to rely on the report because the lab performed the testing as part of its regular business activity and the entries satisfied the timing and knowledge requirements of the business record exception.
The proponent must show that the record was made at or near the time of the event by a person with knowledge, that it was kept in the course of a regularly conducted business activity, and that making such a record was a regular practice of that activity. A custodian or other qualified witness may lay this foundation, or a certification may substitute under Rules 902(11) or (12).
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No. A record prepared in anticipation of litigation rather than in the ordinary conduct of the business does not qualify. The primary purpose of the document controls, so accident reports made after notice of suit or for the purpose of defending a claim fall outside the exception even if they follow a regular company form.
…would entitle the defendant to Confrontation Clause protection. Cf. 2 Wigmore, Evidence §1527, at 1892 (in respect to the business records exception, “there must have been no motive to misrepresent”). Thus, the defendant would remain free to show the absence or inadequacy of the alternative reliability/honesty safeguards, thereby…
…against criminal defendants under any hearsay exception
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No. The exception requires that the informant who supplied the information be under a business duty to convey the facts. Statements from outsiders who had no such duty remain inadmissible hearsay even if the record itself was kept in the regular course of business.
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Each layer of hearsay must independently satisfy an exception. A business record may itself qualify, but any embedded statement from a person not under a business duty must meet its own hearsay exception or exclusion before the composite statement is admissible.
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