Business records may be introduced at trial if they fall within the proper hearsay exception.
Nearly every state and the federal government has enacted evidence rules regarding the admittance of business records during a civil or criminal trial. These rules usually fall under an exception to hearsay rules, which disallow the admittance of any statement made out of court being offered for its truth. Business records are considered hearsay, but an exception can be made if the proponent, the person offering the records, can successfully convince the judge the records are kept in the ordinary course of business and not in preparation for litigation. Federal Rule of Evidence 803(6) is known as the Business Records Exception, and most states mirror this rule in their own evidence statues.
Instructions
1. Ensure the record is kept in the ordinary course of business. This is a very broad requirement and encompasses memorandums, reports, records or data compilation in any form. This includes paper, electronic or any other means available for keeping records. "Business" for purposes of this rule includes any business, institution, association, profession, occupation or calling of any kind, including non-profit agencies.
2. Ensure the records were kept in accordance with time, place and manner requirements. The most important requirement one must meet to qualify for the business records exception is to successfully convince the judge that the records were not kept for purposes of litigation; otherwise the records will not withstand a hearsay objection. The rules require that a business record must be kept at or near the time the recorded information occurred. A record of an event that happened months earlier will likely not qualify. The person keeping the record must be qualified to do so or transcribed the record from information provided by a qualified individual. These records must be kept regularly and not in response to one specified incident or a catastrophe.
3. Prepare for the opponent's objection to the introduction of the business record. The opposing party will already be on notice of the proponent's intention to use the evidence due to the rules of discovery, which require both sides to turn over to one another the evidence that they intend to use at the trial. The opponent will either request a pre-trial hearing on the matter or will hold his objection until the trial. In either event, the proponent of the records must prepare his arguments ahead of time and should foreshadow the opponent's likely reasons for objecting to the evidence. These objections could include an argument that the records are not kept in the ordinary course of business or were prepared for litigation purposes only.
4. Draft a brief in support of the evidence, if necessary. If the opposing party wishes to participate in a pre-trial hearing, or the judge orders one, the proponent will likely need to draft an organized and concise brief ahead of time. The purpose of a brief is to give judges the opportunity to preview the conflict between the parties before the hearing. The brief should include a section detailing the relevant facts pertaining to the business records, the law of the state regarding the hearsay exception and how the law applies to these specific facts. It is also helpful to include arguments to counter the opponents likely arguments. The judge will require each side to briefly orally argue its position in the hearing.
5. Introduce the records evidence at trial if successful in the pre-trial hearing or during-trial objection. Make plenty of copies of the records, if feasible. If the records are too voluminous, the court will allow a summary to be introduced as opposed to introducing thousands of pages of records. Some litigants display evidence on a projector screen, others choose to pass a copy to each juror and the judge. At a minimum, provide the opposing counsel with copies of the records. Most states and the federal system require a qualified witness to testify as to the validity of the records and that they meet all previously mentioned requirements to the business records exception.
Tags: business records, course business, hearsay exception, kept ordinary, kept ordinary course, ordinary course