Evidence Law. Under the “business records” exception to the hearsay rule, certain business records are admissible into evidence to prove the truth of the matters stated in these records. This is a statutory exception that applies in federal courts (see Fed. R. Evid., Rule 803(6)) and most state courts (see, e.g., Cal. Evid. Code § 1271; Fl. Evid. Code § 90.803(6); Tex. R. Evidence., Rule 803(6)
The business records exception is based on the reasoning that such records are generally reliable and trustworthy because they are created in the ordinary course of a business‘s activities and are generally prepared by individuals who do not have an incentive to make false statements.
For the business records exception to apply, the party moving to admit the record into evidence generally must make the following showings:
- The record was made at or near the time of the event;
- The record was made by or from information transmitted by a person with knowledge;
- The record was kept in the ordinary course of a regularly conducted business activity; and
- It was a regular practice of that business to make such a record.
Brown v. Liberty Mutual Ins., 774 A.2d 232, 238-39 (Del. 2001):
An out-of-court record of an act or event is admissible under the business records exception (1) if the record was made at or near the time of the act or event (2) by, or from information transmitted by, a person with knowledge, (3) if the record is prepared and maintained in the course of a regularly conducted business activity and (4) if it was the regular practice of the organization to make a record of the act or event. Even if the statement satisfies these requirements, however, the trial court may nevertheless exclude the statement where the method of preparation of the record or the source of the information indicates a lack of trustworthiness . . .
The business records exception to the hearsay rule permits the admission of hearsay documents that are likely to be trustworthy because a business regularly maintains and relies on them. Thus, the principal precondition to admission of documents as business records pursuant to Fed.R.Evid. 803(6) is that the records have sufficient indicia of trustworthiness to be considered reliable.
Solomon v. Shuell, 435 Mich. 104, 118-26 (1990):
The current business records hearsay exception codified in MRE 803(6) and its federal counterpart, FRE 803(6), derives from two separate and distinct common-law exceptions to the hearsay rule, the shop book rule and the regular entries rule. The rules were limited in scope and imposed stringent foundation requirements on the parties offering evidence . . .
The evolution of the business records hearsay exception clearly indicates that FRE 803(6) and MRE 803(6) have eliminated burdensome common-law restrictions and have broadened the scope of the exception. In order to ensure the same high degree of accuracy and reliability upon which the traditional, but narrowly construed business records exception was founded, the current rules also recognize that trustworthiness is the principal justification giving rise to the exception. Thus, FRE 803(6) and MRE 803(6) provide that trustworthiness is presumed, subject to rebuttal, when the party offering the evidence establishes the requisite foundation. Even though proffered evidence may meet the literal requirements of the rule, however, the presumption of trustworthiness is rebutted where the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Consequently, in cases like the present, the trial court, upon a party’s timely objection, must determine as a question of admissibility whether the proffered evidence lacks trustworthiness.
Jackson v. Household Finance Corp. III, 298 So.3d 531, 535 (Fla. 2020):
Florida’s Evidence Code sets forth the general rule that “hearsay” is not admissible except as provided by statute and defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” The Evidence Code defines some categories of evidence as non-hearsay, and therefore generally admissible, and also lists a number of “exceptions,” which constitute categories of admissible hearsay. The business records exception to the hearsay rule provides for the admission of “records of regularly conducted business activity” as follows:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
As explained by the Second District, “A party can lay a foundation for the [admission of documents pursuant to the] business records exception in three ways: (1) offering testimony of a records custodian, (2) presenting a certification or declaration that each of the elements has been satisfied, or (3) obtaining a stipulation of admissibility.”
Hampton v. Bruno’s, Inc., 646 So.2d 597, 599 (Ala. 1994):
It is an established rule of evidence that, to admit any document into evidence over objection, the party offering the evidence must show that the document is genuine or authentic. This authentication requirement is totally separate from the requirements of the business records exception. While authentication is necessary before a document can be admitted under the business records exception, authentication alone is never sufficient to admit a document as a business record over a party’s objection. The offering party must always meet the requirements of the business records exception in addition to the authentication requirement, if the other party makes the proper objection.
Rule 44(h), A.R.Civ.P., provides the requirements for the business records exception to the hearsay rule. It states in pertinent part:
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if it was made in the regular course of any business, profession, occupation, or calling of any kind, and it was the regular course of the business . . . to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.
According to the language of the rule, upon objection the offering party must prove three elements in order to admit a document under the business records exception to the hearsay rule. The offering party must show first that the document is a memorandum or record of an act, transaction, occurrence, or event; second, that the document offered for admission was prepared in the opposing party’s regular course of business; third, that it was in the regular course of business for the opposing party to prepare such a document.