Need to get business records into evidence? There’s a hearsay exception for that! The business records exception to the hearsay rule makes it easier for businesses to provide records during litigation without undue disruption. Here’s how to use it.
First off, think broadly. The term “business records” applies to records of every kind of business enterprise, profession, occupation, calling, institutional operation, or governmental activity, whether profit or nonprofit. Evid C §1270.
To admit business records, you’ll have to establish an exception to the hearsay rule (see Evid C §1271) and authenticity of the records (see Evid C §§1271, 1561-1562) by showing that:
- Writing was made in regular course of business (Evid C §1271(a));
- Writing was made at or near the time of the act, condition, or event (Evid C §1271(b));
- Custodian or other qualified witness identifies the document and how it was prepared (Evid C §1271(c));
- Writing appears trustworthy based on the source of information and method of preparation (Evid C §1271(d)); and
- Copy produced in court is a true copy of the records as kept at the place of business (Evid C §1561(a)(2)).
Now you know what the rules require, but it’s even better to see how it might play out in the courtroom.
Here’s a sample record showing you how to lay the foundation for introducing a business record into evidence through the live testimony of the person who wrote the report:
Q: I am handing you a document now marked as Defendant’s Exhibit E for purposes of identification. Would you please read the document and tell us whether or not you recognize it?
A: Yes, I do.
Q: Could you tell us what it is?
A: It’s the accident report I prepared as a result of this accident. [Identifies document and who prepared it.]
Q: Why did you prepare this?
A: It’s the procedure at our company that an accident report will be prepared any time an employee is injured on the job. [Shows writing was made in course of business.]
Q: Who has the responsibility for preparing those reports?
A: I do.
Q: Was that also true at the time of the accident involving Mr. Gray?
Q: Is there a procedure you follow in preparing a report such as Exhibit E?
Q: Could you describe for us what that procedure is?
A: As soon as I learn of an accident, I immediately go to the accident site to talk to the injured employee, if that’s possible, and to any witnesses to the accident. I then record in my report what each of these people tells me. I also take a camera with me to photograph anything that might be helpful in recording what happened. [Shows ordinary course of business.]
Q: Did you follow that procedure in preparing this Exhibit E?
A: Yes, I did. [Shows that writing made as a record of an event and mode of preparation.]
Q: How long was it after the accident that you arrived at the accident site?
A: Within the hour.
Q: How much later was it that you had prepared this report?
A: I did the entire report on the same day. [Shows that writing made near time of event.]
Q: How accurate is this record with respect to recording what you observed and heard at the accident site?
A: Very accurate. [Shows trustworthiness.]
Q: After this accident report, Exhibit E, was prepared, what did you do with it?
A: The original went into the file that I maintain on all accident reports. A copy of it went to my boss.
Q: Has this report, Exhibit E, been altered or modified in any way since the day you prepared it?
You don’t have to use the live testimony of the person who made the report; the business-record exception to the hearsay rule also allows records to be authenticated through an affidavit (or declaration).
For a step-by-step approach to the laying a foundation for all types of evidence, turn to CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial). Introduction of business records is also covered in CEB’s Effective Introduction of Evidence in California.
Other CEBblog™ posts you may find useful:
- Logging Your Exhibits Without Getting Logjammed
- Introducing Evidence? Make an Offer of Proof!
- 7 Ways to Respond to an Evidence Objection
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