/REK-erdz of REG-yuh-ler-lee kun-DUK-tid ak-TIV-i-teez/
Also known as:record of regularly conducted activity · regularly conducted activity records · regularly conducted activities records · business records exception · FRE 803(6) · Rule 803(6)
Written by attorneys · grounded in primary & secondary sources — see below
An exception to the hearsay rule that permits admission of a record of an act, event, condition, opinion, or diagnosis. The record must have been made at or near the time of the matter recorded by someone with knowledge, kept in the course of a regularly conducted business activity, and made as a regular practice of that activity.
Sources & Authorities
How it applies
Common Examples
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Accident Report Prepared for Litigation
After a train derailment, Reliance Insurance's claims adjuster Rachel Ramirez prepared a detailed internal report describing the cause of the crash and potential liability. The report followed the company's standard claims-investigation protocol but was created after the company anticipated a lawsuit from injured passengers. When a passenger later offered the report at trial to prove the railroad's negligence, the court excluded it because the primary purpose of the document was to prepare for litigation rather than to document ordinary business operations.
DNA Report Offered in Criminal Trial
In a sexual-assault prosecution, the state offered a certified DNA analysis report prepared by a private laboratory that regularly tests forensic samples for law-enforcement agencies. The report was made at or near the time of testing by analysts with personal knowledge and was kept in the laboratory's ordinary course of business. The defendant objected on confrontation grounds, arguing that the report was prepared for use at trial rather than for the laboratory's independent business purposes.
Select any source to read its text and confirm it supports the definition.
Cases
Hornbooks
Williams v. Illinois567 U.S. 50 (2012)
Common questions
Frequently Asked
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When does a record prepared in the regular course of business lose its status as a record of regularly conducted activities?+
A record loses the protection of the exception when its primary purpose is to prepare for litigation rather than to document the ordinary operations of the enterprise. Courts examine whether the maker of the record was acting pursuant to a business duty or instead was responding to an anticipated lawsuit.
Supporting sources
Must the person who made the entry have obtained the information directly or from someone under a business duty to report it?+
Yes. The exception requires that the information come from a person who was under a business duty to transmit it. Statements from third parties who have no such duty remain inadmissible hearsay even if they appear in an otherwise qualifying business record.
Supporting sources
Does the business-records exception override Confrontation Clause objections to testimonial statements in criminal cases?+
No. Even if a record satisfies the elements of the business-records exception, testimonial statements remain subject to the Confrontation Clause. The prosecution must still show that the declarant is unavailable and that the defendant had a prior opportunity for cross-examination.
Supporting sources
567 U.S. 50 (2012)Evidence
…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…