Also known as: business record doctrine · business records exception
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception that permits admission of a record of acts or events made in the course of a regularly conducted business activity. The record must be made at or near the time of the event by a person with knowledge or from information transmitted by a person with knowledge who was under a business duty to report. The exception does not apply when the record was prepared primarily in anticipation of litigation rather than for the regular conduct of the enterprise.
Brandon Black, an employee of Bayside Shipping, prepared an internal report detailing a dock collision involving one of the company's vessels. The report followed the company's standard form but was created after the company received notice of an impending lawsuit from the other vessel owner. At trial the court excluded the report because its dominant purpose was to prepare for litigation rather than to document routine business operations.
Brooke Bryant was prosecuted for a drug offense after a laboratory produced a report identifying a substance seized from her vehicle. The report was generated by an analyst who had no direct knowledge of the sample collection and who relied on information from a field officer under no business duty to the lab. The court held the report inadmissible because the chain of information failed the requirement that each informant act under a business duty to report.
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A record loses the protection of the exception when its primary purpose is to prepare for litigation rather than to document the regular conduct of the business. Courts examine whether the enterprise's ordinary operations include creating the type of record at issue. If litigation preparation dominates, the record is excluded even if it follows a regular practice.
Supporting sources
The record must rest on information supplied by a person who either had personal knowledge or was under a business duty to report the information to the recorder. Information from third parties outside the business who owe no reporting duty renders the record inadmissible as classic hearsay.
Supporting sources
Machine-generated reports fall outside the hearsay rule entirely because they contain no statement by a human declarant. The doctrine is therefore unnecessary and does not govern their admissibility.
Supporting sources
…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…