BUSINESS RECORDS

§ 1. Generally.
§ 2. What Qualifies As a "Business"?
§ 3. When Must Information Have Been Recorded?
§ 4. Personal Knowledge Requirement.
§ 4(a). Double or Multiple Hearsay.
§ 4(b). Opinions.
§ 5. "Made in Regular Course of Business."
Trustworthiness
Absence of an Entry
Laying a Foundation
What Evidence May Be Considered as Foundation?
Qualifying a Witness
The Confrontation Clause
Trial Court’s Discretion
Appeal

1. Authentication

In some jurisdictions, certified copies or certified originals of business records are self-authenticating.{footnote}Unif. R. Evid. 902(11); Alaska R. Evid. 902(11); Ky. R. Evid. 902(11); Md. R. Evid. 5-902(a)(11) (1994); Chapman v. State, 628 A.2d 676, 678-86 (Md. 1993) (state statute permitting use of affidavit to establish status of bank account held not to violate federal Confrontation Clause); Tex. R. Civ. Evid. 902(10); Tex. R. Crim. Evid. 902(10); March v. Victoria Lloyds Ins. Co., 773 S.W.2d 785 (Tex. Ct. App. 1989) (affidavit accompanying laboratory report regarding alcohol concentration found in blood of victim held sufficient even though certifier had no personal knowledge of blood analysis).
See also Lynn McLain, Self-Authentication Of Certified Copies Of Business Records, 24 U. Balt. L. Rev. 27 (1994).{/footnote} In federal criminal proceedings, foreign business records may be authenticated without live testimony pursuant to 18 U.S.C. § 3505.{footnote}18 U.S.C. § 3505 (1988).{/footnote} This statute has been applied so as to liberally allow the introduction of foreign business records,{footnote}United States v. Sturman, 951 F.2d 1466, 1489 (6th Cir. 1991), cert. denied, 112 S. Ct. 2964 (1992); United States v. Bertoli, 854 F. Supp. 975, 1030 n.101 (D.N.J. 1994) (citing United States v. Strickland, 935 F.2d 822, 830-31 (7th Cir.), cert. denied sub nom., Moore v. United States, 502 U.S. 917 (1991)); United States v. Gleave, 786 F. Supp. 258, 277-78 (W.D.N.Y. 1992), aff’d in part, rev’d in part on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994).{/footnote} and has been held not to infringe a defendant’s rights under the Confrontation Clause.{footnote}United States v. Sturman, 951 F.2d 1466, 1490 (6th Cir. 1991), cert. denied, 112 S. Ct. 2964 (1992); United States v. Miller, 830 F.2d 1073, 1077-78 (9th Cir. 1987), cert. denied, 485 U.S. 1033 (1988); United States v. Ross, 33 F.3d 1507, 1515-16 (11th Cir. 1994); United States v. Gleave, 786 F. Supp. 258, 276-280 (W.D.N.Y. 1992), aff’d in part, rev’d in part on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994); United States v. Hing Shair Chan, 680 F. Supp. 521, 522 (E.D.N.Y. 1988). {/footnote}

2. The Hearsay Exception for Business Records

2(a). Generally

The federal rules except from the hearsay rule certain business documents even though they are hearsay.{footnote}FRE 803(6).{/footnote} FRE 803(6) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 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 the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trust-worthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Most states have similar hearsay exceptions.{footnote} E.g., Ala. Code § 12-21-43; Ala. R. Civ. P. 44(h); Cal. Evid. Code § 1271 (1995); Ill. Rev. Stat. ch. 110, § 8-401 (account books and records in civil cases); Ill. Rev. Stat. ch. 110A, & 236 (business records in civil cases); 725 ILCS 5/115-5(a) (1992) (business records in criminal cases); Ill. Sup. Ct. R. 236(a); Kan. Stat. Ann. 60-460(m); Ky. R. Evid. 803(6); Md. R. Evid. 5-803(b)(6); Minn. R. Evid. 803(6); Miss. R. Evid. 803(6); Rev. Stat. Mo. § 490.680 (1994) (Uniform Business Records as Evidence Law); Mont. R. Evid. 803(6); Neb. Rev. Stat. § 27-803(5) (Reissue 1989); N.J. Evid. R. 63(13); N.Y. CLS CPLR & 4518 (1996); N.C. R. Evid. 803(6); 42 Pa. C.S.A. @ 6108; Tenn. Code. Ann. § 24-7-111(c) (Uniform Business Record Evidence Act); W. Va. R. Evid. 803(6).{/footnote} No showing need be made that the person who created the record is unavailable.{footnote}Note to FRE 803(6).
Cal. § 1271; N.Y. C.P.L.R. 4518; Meiselman v. Crown Heights. Hosp., 285 N.Y. 389, 396-397 (19__); People v. Klein, 105 A.D.2d 805, 806, aff’d, 65 N.Y.2d 613 (19__).{/footnote} The exception is construed liberally in favor of admissibility.{footnote}Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996).{/footnote}

This exception is based on two considerations: necessity and reliability.{footnote}E.g., Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996).{/footnote} Modern businesses commonly create records based on information provided from several sources. Without a hearsay exception, parties would be required to produce numerous witnesses to establish facts contained in business records,{footnote}West End Recreation, Inc. v. Hodge, 776 S.W.2d 101-105, (Tenn.App. 1989).{/footnote} such as the dates on which payments were received, or the hours that an employee worked. A hearsay exception was deemed necessary to simplfy the presentation of evidence in the context of today’s increasingly complex business world. The other basis for the exception is that routine business records are seen as reliable because of the use and reliance on these records by a business in its everyday activities.{footnote}Long Beach v. Standard Oil Co. of America, 46 F.3d 929, 937 (9th Cir. 1995).
State v. Hager, 691 A.2d 1191 (Me. 1996).{/footnote}
~~This summary is repeated under MEMORANDA.~~

2(b). What Qualifies As a "Business"?

Under the federal rules, a "business" includes any "business, institution, association, profession, occupation, and calling."{footnote}FRE 803(6).{/footnote} Records of government agencies are also covered by a separate hearsay exception.{footnote}E.g., FRE 803(8). See OFFICIAL RECORDS AND REPORTS.{/footnote} Nevertheless, under the federal rules they may be admitted under this exception where all of the criteria are met.{footnote}See OFFICIAL RECORDS AND REPORTS § 5. The Business Records Exception Applied to Public Records.{/footnote}

Entities qualifying as "businesses" include non-profit organizations,{footnote}United States v. Sanchez, 380 F. Supp. 1260 (N.D. Tex. 1973).{/footnote} prisons,{footnote}Wheeler v. Sims, 951 F.2d 796 (7th Cir. 1992)(prison mmedical records).
CHECK Dept. of Public Safety & Correctional Servs. v. Cole, 672 A.2d 1115, 1125 (Md. 1996).{/footnote} police,{footnote}Marriage of Malec, 205 Ill. App. 3d 273, 562 N.E.2d 1010 (1st Dist. 1990).{/footnote} [etc.] …{footnote}Stone v. Morris, 546 F.2d 730, 738 (7th Cir. 1976).{/footnote} See also MEDICAL RECORDS.

2(c). What Constitutes a “Record”?

This hearsay exception does not apply to oral testimony, but it has been extended beyond standard written documents. See PHOTOGRAPHS 3. As Hearsay; VIDEOTAPES AND FILMS § 4. As Hearsay; X-RAYS.

2(c). When Must Information Have Been Recorded?

The information in an offered item of evidence must have been recorded at or near the time of the occurrence reflected in the record.{footnote}FRE 803(6).
{/footnote} While records created a few days after the events have generally been held admissible,{footnote}Wheeler v. Sims, 951 F.2d 796, 804 (7th Cir.), cert. denied, 506 U.S. 914 (1992)(record made eleven days after events admissible).

But see Hiram Wicker & Sons v. Students Int’l Meditation Society, 501 F.2d 550, 554 (1st Cir. 1974)(records prepared one week after information contained in record first report held inadmissible).{/footnote} reocords created weeks or months later have generally been held inadmissible.{footnote}Willco Kuwait Trading S.A.K. v. deSavary, 843 F.2d 618, 628 (1st Cir. 1988)(three months); Missouri Pac. R.R. v. Austin, 292 F.2d 415, 423 (5th Cir. 1961)(14 months); United States v. Kim, 595 F.2d 755 (D.C. Cir. 1979)(telex message inadmissible where prepared two years after events discussed).{/footnote} The foundation witness need not be able to testify as to when the particular record was prepared,{footnote}E.g., State v. Scott, 471 S.E.2d 605, 617 (N.C. 1996) (“if the records themselves show that they were made at or near the time of the transaction in question, the authenticating witness need not testify from personal knowledge that they were made at that time”).{/footnote} so long as he or she can testify that it is a type of record which is ordinarily completed at or near the time of the occurrence reflected.{footnote}United States v. Bland, 961 F.2d 123, 127 (9th Cir. 1992) (“failure to identify either the specific person who completed Exhibit 13 [an ATF form to be completed by gun dealers] or when that person completed it, do not keep Exhibit 13 from being a business record. Frederickson’s testimony that Exhibit 13 was ordinarily completed at the time of the purchase was sufficient . . . “) (citations omitted), cert. denied, 113 S. Ct. 170 (1992).{/footnote}

2(d). Personal Knowledge

The person creating the business record need not have had personal knowledge of the matter recorded,{footnote}United States v. Ahrens, 530 F.2d 781, 784 n. 6 (8th Cir. 1976); United States v. Arias-Villaneuva, 998 F.2d 1491, 1503 (9th Cir. 1993) (a "qualified witness," for purposes of Federal Rule 803(6), need not "know ‘who filled out the particular document and whether that person really had knowledge of the events that were purportedly being reported in the document’"), cert. denied, 114 S. Ct. 537 (1993).{/footnote} so long as he or she obtained the information from someone with personal knowledge who was under a business duty to report the information.{footnote}Annot., 69 ALR 2d 1148 ; Johnson v. Lutz, 253 N.Y. 124 (1930)(police report?); Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d Cir. 1979)(police report?); United States v. Lange, 466 F.2d 1021 (9th Cir. 1972)(?).
State v. Kreutzer, 928 S.W.2d 854, 868 (Mo. 1996); Worster v. Watkins, 669 A.2d 212, 216-17 (N.H. 1995) (police investigative report inadmissible where based on information from informant).
2 McCormick, § 290, at 273.{/footnote} Statements by third parties not under any business duty to provide information which are contained in the record are inadmissible.{footnote}FRE 803(6) Advisory Committee’s Note; Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991); United States v. Yates, 553 F.2d 518, 521 (6th Cir. 1977); United States v. Robertson, 588 F.2d 575 (8th Cir. 1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979); United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983); United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir. 1986)(inmates’ statements recorded in investigating officer’s report properly excluded); United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982)
Alexander v. Commonwealth, 862 S.W.2d 856, 862 (Ky. 1993) (hearsay statements made by children to social workers in the course of an abuse or neglect investigation inadmissible); B & K Rentals And Sales Co., Inc. v. Universal Leaf Tobacco, 596 A.2d 640 (Md. 199_) (statements by witness included in fire investigation report inadmissible); State v. Taylor, 46 N.J. 316, 330-331, cert. denied, 385 U.S. 885 (1966) (third-party statements in doctor’s record held inadmissible).
Weinstein at 803-186 (1985); McCormick on Evidence, § 324.3 at 912 (E. Cleary, 3d ed. 1984).
But see United States v. Zapata, 871 F.2d 616, 625-26 (7th Cir. 1989) (statement by third party not under business duty admissible where verified by someone under a business duty to verify such information; hotel registration information prepared by guest admissible where required to be verified by hotel employee).{/footnote} The person whose personal knowledge was the basis for the record need not be identified for the record to be admissible.{footnote}See S. Rep. No. 1277, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7063; United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978); United States v. Arias-Villaneuva, 998 F.2d 1491, 1503 (9th Cir. 1993) (a "qualified witness," for purposes of Federal Rule 803(6), need not "know ‘who filled out the particular document and whether that person really had knowledge of the events that were purportedly being reported in the document’"), cert. denied, 114 S. Ct. 537 (1993);{/footnote} The creator of the record also need not be identified.{footnote}United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); United States v. Verlin, 466 F. Supp. 155, 158 (N.D. Tex. 1979).{/footnote} See also HEARSAY–Double or Multiple Hearsay.

2(e). Opinions

Opinions as well as factual entries in business records are generally admissible under this exception.{footnote}FRE 803(6) ("opinions or diagnoses" admissible); Smith v. Universal Svcs., Inc., 454 F.2d 1 54 (5th Cir. 1972); United States v. Calvert, 523 F.2d 895 (8th Cir. 1975).
River Dock & Pile, Inc. v. O & G Indus., 595 A.2d 839, 846 (Conn. 1991); City of Bay St. Louis v. Johnston, 222 So. 2d 841, 847 (Miss. 1969) (expert medical opinion contained in hospital record admissible); State v. Taylor, 486 S.W.2d 239, 242 (Mo. 1972) (expert medical opinion contained in hospital record admissible).
Contra Cal. § 1271.{/footnote} It has been held, however, that opnions and conclusions in business records are only admissible where the subject matter calls for an expert or professional opinion and the declarant had the expert or professional competence to render the opinion.{footnote}Clark v. Los Angeles, 650 F.2d 1033, 1036-37 (9th Cir. 1981).
Drumm v. Commonwealth, 783 S.W.2d 380 (Ky. 1990) (opinions and conclusions of social workers are not admissible where they were not qualified); Dassing v. Fred Frederick Motors, Inc., 214 A.2d 925, 927 (Md. 1965) (figure on application for transfer of title of automobile was not sufficient evidence of automobile’s value, where there was no testimony as to who expressed that opinion); West v. Fidelity-Baltimore Nat’l Bank, 219 Md. 258, 264-65, 147 A.2d 859, 862-63 (1959) (entries made by nurses as to testator’s mental condition properly excluded).
But see United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979) (no error to admit business record containing opinion of appraiser, when opponent failed to alert trial court to specific facts raising any doubt as to appraiser’s qualifications; "We see no reason to adopt an inflexible rule that every case requires the proponent of a business record containing expert opinion to affirmatively establish the qualifications of the person forming the opinion.”), cert. denied, 446 U.S. 935 (1980), cited with approval in 2 Mccormick, § 288, at 268 n.15.
But see Graham v. State, 547 S.W.2d 531, 538 (Tenn. 1977) (reversible error to exclude hospital records because they did not establish doctor’s qualification as a psychiatrist; "The qualifications of the individual preparing the report may be inquired into, may be challenged or may be disputed, but this goes to weight and not admissibility.").
See generally 2 Mccormick, §§ 287, 307; 5 Wigmore On Evidence, § 1533; 6 Wigmore On Evidence § 1707 (1976) (hospital records).{/footnote} See also MEDICAL RECORDS; OPINIONS. In some cases, however, admission of a hearsay opinion has been held to violate a criminal defendant’s right of confrontation if the declarant it unavailable for cross-examination, particularly where the opinion goes to a central issue in the prosecution.{footnote}Birdsell v. United States, 346 F.2d 775, 779 (5th Cir.) (opinions as to defendant’s sanity), cert. denied, 382 U.S. 963 (1965).
Gregory v. State, 391 A.2d 437, 454-56 (Md. Ct. App. 1978) (admission of hospital record falling within business records exception which included doctors’ opinions as to defendant’s sanity violated right to confrontation).{/footnote} See MEDICAL RECORDS ‘ __. See also § 4. Confrontation Clause, infra; and CONFRONTATION.

2(f). "Made in Regular Course of Business"

The person creating the record must have had a duty to create such records as a regular practice. Records held to have met this test include yearly catalogs.{footnote}United States v. Grossman, 614 F.2d 295, 297 (1st Cir. 1980).{/footnote} Records held not to meet this test include records arising from winding up of a business,{footnote}Pulkrabek, Inc. v. Yamaha Int’l Corp., 261 N.W.2d 657 (N.D. 1977).{/footnote} and hospital records of statements made by a patient unrelated to treatment.{footnote}Kelly v. Sheehan, 259 A.2d 605 (Conn. 1968).{/footnote} Some states admit only original record entries under this exception (thus excluding computer-generated records). Federal practice is otherwise. See COMPUTER RECORDS. See also SUMMARIES.

2(f)(2). Non-routine Records

Some courts have held records admissible even though they were not made as a regular business practice so long as the circumstances indicate that the records are trustworthy.{footnote}United States v. Prevatt, 526 F.2d 400, 403 (5th Cir. 1976)(informal notebooks kept by employees); Magnus Petroleum Co., Inc. v. Skelly Oil Co., 446 F. Supp. 874, 882-83 (E.D. Wis. 1978), rev’d on other grounds, 599 F.2d 196 (7th Cir.), cert. denied, 444 U.S. 916 (1979)(handwritten notes made during negotiations). See also Weinstein & 803(6)[03], at 803-182.

United States v. Sanders, 749 F.2d 195, 197-98 (5th Cir. 1984)(record must have been kept pursuant to routine procedure); Coughlin v. Capitol Cement Company, 571 F.2d 290, 307 (5th Cir. 1978).{/footnote} Other courts have been more strict in requiring proof that the record was of a type made in the "regular practice" of the business.{footnote}United States v. Strother, 49 F.3d 869, 876 (2d Cir. 1995)(bank memos relating to specific overdrafts); United States v. Freidin, 849 F.2d 716, 720 (2d Cir. 1988)(interoffice memorandum excluded); Armstead v. United States Dept. of Housing and Urban Dev., 815 F.2d 278, 282 n. 3 (3d Cir. 1987)(telephone messages excluded); United States v. Ramsey, 785 F.2d 184, 192 (7th Cir.), cert. denied, 476 U.S. 1186 (1986)(notations on business calendar excluded); United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 268, 81 L.Ed.2d 874 (1984)(defense contractor’s internal memoranda detailing history of contracts awardeed by it prepared as part of internal investigation excluded where no regular business practice of making such memoranda); Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F. Supp. 1190, 1232 (E.D.Pa. 1980)(diaries, memoranda and letters).{/footnote} See also ACCIDENT REPORTS; INCIDENT REPORTS; LETTERS; MEMORANDA; NOTES.

2(f)(2). Records Made in Anticipation of Litigation

Records which were made in anticipation of litigation, if not of a type that are routinely made, may be excluded as hearsay.{footnote}Palmer v. Hoffman, 318 U.S. 109, 113 (1943)(accident report prepared by railroad engineer inadmissible because regular course of railroading does not include writing accident reports); Masterson v. Pennsylvania R.R., 182 F.2d 793, 796-97 (3d Cir. 1950); United States v. Williams, 661 F.2d 528, 531 (5th Cir. 1981)(memorandum estimating value of stolen trailer prepared "clearly…for purposes of the trial" held inadmissible); Clark v. Los Angeles, 650 F.2d 1033, 1036-37 (9th Cir. 1981) (diary kept by vendor of encounters with police erroneously admitted where it was created for purposes of litigation), cert. denied, 456 U.S. 927 (1982).
725 ILCS 5/115-5(c)(2) (1992) (records inadmissible if "made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind."); Weishaar v. Canestrale, 217 A.2d 525, 531 (Md. 1966) (self-serving statement in anticipation of litigation inadmissible).
4 Weinstein & Berger, && 803(6)[03], [05], [07].
But see Chapman v. State, 628 A.2d 676, 684-85 (Md. 1993) (bank affidavit regarding bad check prepared for use by prosecution in criminal case admissible; "The bank has neither a position to advocate nor a stake in the outcome of a criminal trial.").{/footnote} See also ACCIDENT REPORTS; INCIDENT REPORTS.

2(f)(3). Documents Received from Others

While normally the "business" in question is the one which "made" the record, documents received by the businass are also admissiblee under the business records exception where they were of a type regularly received, maintained and relied upon.{footnote} United States v. Flom, 558 F.2d 1179, 1182 (5th Cir. 1977) (invoices); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986)(letters); United States v. Pfeiffer, 539 F.2d 668, 670-71 (8th Cir. 1976)(shipping receipts).
GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App. 1991).{/footnote} See also INVOICES; LETTERS; RECEIPTS.

2(g). Trustworthiness

Records are not admissible under FRE 803(6) if the circumstances indicate a lack of trustworthiness.{footnote} FRE 803(6); United States v. Davis, 571 F.2d 1354 (5th Cir. 1978) (report made to ATF years after shipment of gun in question inadmissible); Lewis v. Velez, 149 F.R.D. 474 (S.D.N.Y. 1993).
Adamatic v. Progressive Baking Co., 667 A.2d 871, 874-75 (Me. 1995) (internal memorandum excluded as untrustworthy based on suspicious origin of the memorandum and fact that no other memoranda were produced); Commonwealth v. Travaglia, 661 A.2d 352, 363 (Pa. 1995) (report from National Crime Information Center offered at sentencing to show that defendant did not have any prior convictions held properly excluded as not being trustworthy).{/footnote} The characteristics of the entries in the records themselves (e.g., regular or irregular) may help to establish their trustworthiness.{footnote}U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989). {/footnote} Courts, however, have uheld the admission of documents which had been altered{footnote}U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989).{/footnote} or which contained inaccuracies.{footnote}United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986).{/footnote} See also "’Made in Regular Course of Business’: Records Made in Anticipation of Litigation," above. Generally the fact that a business record is self-serving is not a sufficient basis for excluding it from evidence. See also SELF-SERVING STATEMENTS–Business Records Exception.

Records have been held admissible under this exception although the foundation witness testifies that she does not know whether they have been maintained in their original form or whether they have been altered.{footnote}United States v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994) (no abuse of discretion in admitting telephone records; “Any break in the chain of custody goes to the weight of the evidence rather than its admissibility . . . ."), cert. denied, 115 S. Ct. 113 (1995). {/footnote}

Under Rules 803(6), the party objecting to the record has the burden of establishing that the documents is not trustworthy.{footnote}In re Japanese Elec. Products Antitrust Litig., 723 F.2d 238, 287-88 (3d Cir. 1983), rev’d sub. nom. on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994); Department Of Pub. Safety & Correctional Servs. v. Cole, 672 A.2d 1115, 1124 (Md. 1996).
Contra People v. Beeler, 891 P.2d 153 (Cal. 1995) (burden on proponent to establish trustworthiness).
See also Estate of Solomon v. Shuell, 457 N.W.2d 669, 679 (Mich. 1990) (trustworthiness is “an express condition of admissibility” under Mich. R. Evid. 803(6)).{/footnote}

2(h). Custodian or Other Qualified Witness

Under FRE 803(6), the offering party must lay a foundation under the exception through the testimony of the custodian of records or another qualified witness.{footnote}United States v. Reese, 561 F.2d 894 (D.C. Cir. 1977); United States v. Rappy, 157 F.2d 964 (2d Cir. 1946). Cf. Cal. § 1560 (foundation for records of non-party may be laid by affidavit).
Cal. § 1271.{/footnote}

2(h)(1). Qualifying a Witness

The requirement of FRE 803(6) that a foundation be laid by a custodian of records "or other qualified witness" has been broadly interpreted by the courts.{footnote}U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989).{/footnote} The witness need only have knowledge of the procedures under which the records were created and maintaned{footnote}United States v. Hathaway, 798 F.2d 902 (6th Cir. 1986); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984); United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990); Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996).
Henderson v. State, 915 P.2d 6, 12 (Idaho 1996); Cent. Sec. and Alarm Co. Inc. v. Mehler, 918 P.2d 1340. 1349 (N.M. App. 1996).
4 Weinstein & Berger, & 803(6)[02], at 803-201-03 & nn.11-12, & 803(6)[04], at 803-211-13.{/footnote} either from personal knowledge or hearsay.{footnote}U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989).{/footnote} This is consistent with the practice of allowing parties to offer virtually any evidence, even hearsay, to lay a foundation for admissibility. See ADMISSIBILITY–What Evidence May Be Considered As Foundation? HEARSAY–What Evidence May Be Considered As Foundation?

The witness need not be the person who created the record{footnote}United States v. Jones, 554 F.2d 251, 252 (5th Cir.), cert. denied, 434 U.S. 866 (1977); United States v. Moore, 791 F.2d 566, 574, rev’d on other grounds, 865 F.2d 149 (7th Cir. 1989); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); United States v. Franks, 939 F.2d 600, 602-03 (8th Cir. 1991); United States v. Bland, 961 F.2d 123, 127 (9th Cir. 1992), cert. denied, 113 S. Ct. 170 (1992); FDIC v. Staudinger, 797 F.2d 908, 910 (10th Cir. 1984); United States v. Atchley, 699 F.2d 1055 (11th Cir. 1983)(telephone billing records admissible); Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996).
State v. Hager, 691 A.2d 1191 (Me. 1996); State v. Scott, 471 S.E.2d 605, 617 (N.C. 1996).
2 McCormick On Evidence § 292, at 277.{/footnote} or maintained the record{footnote}United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996)
State v. Hager, 691 A.2d 1191 (Me. 1996).{/footnote} and need not have first-hand knowledge of the record’s contents.{footnote}United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984).
Department Of Pub. Safety & Correctional Servs. v. Cole, 672 A.2d 1115, 1123 (Md. 1996) (prison videotape admissible).{/footnote} The witness need not be able to identify the person who created the record, or the person whose personal knowledge is reflected in the record. See 2(d). Personal Knowledge, supra. The witness need not testify as to the chain of cutody for the record.

The witness need not have been employed at the business at the time the record was created,{footnote}United States v. Evans, 572 F.2d 455, 490 (5th Cir.), cert. denied, 439 U.S. 870 (1978); United States v. Rose, 562 F.2d 409, 410 (7th Cir. 1977).{/footnote} or at any time. Non-employee witnesses who have been held qualified include law enforcement agents,{footnote}United States v. Veytia-Bravo, 603 F.2d 1187, 1191-92 (5th Cir. 1979); U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989); U.S. v. Hathaway, 798 F.2d 902, 905-07 (6th Cir. 1986). {/footnote} a fraud investigator,{footnote}United States v. Ray, 930 F.2d at 1370-71{/footnote} a government auditor,{footnote}Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996).{/footnote} an accountant who was not an employee of the business in question.{footnote}United States v. Draiman, 784 F.2d 248, 256 (7th Cir. 1986).{/footnote} Indeed, one court has held that live testimony is not even necessary.{footnote}In re Japanese Elec. Products Antitrust Litigation, 723 F.2d 238, 287-88 (3d Cir. 1983), rev’d sub. nom. on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574 (1986) (foundation can be laid by documentary evidence, affidavits, or admissions of the parties). See also US v. Kail, 804 F.2d 441, 449 (8th Cir. 1986) (foundation under 803(6) may be established by direct or circumstantial evidence). {/footnote}

2(h)(2). Live Testimony Not Required

Several courts have suggested that a foundation may be laid for this hearsay excpeption without live testimony.{footnote}In re Japanese Elec. Products Antitrust Litig., 723 F.2d 238, 287-88 (3d Cir. 1983), rev’d sub. nom. on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (in dictum, stating, “It would make little sense to require live witness testimony every time a business record is offered when, from the other materials open for the court’s consideration, it can make the required finding to its own satisfacion.”); U.S. v. Franco, 874 F.2d 1136, 1140 (7th Cir. 1989) (dictum; live testimony presented); FDIC v. Staudinger, 797 F.2d 908, 910 (10th Cir. 1986) (dictum; live testimony presented)
Contra Tongil Co. v. The Vessel "Hyundai Innovator", 968 F.2d 999, 1000 (9th Cir. 1992) (reversing judgment in bench trial where plaintiff’s entire case consisted of business records supported by written declarations; court held that foundation for business records exception must be laid by live testimony).{/footnote} A foundation may be laid through circumstantial evidence,{footnote}United States v. Kail, 804 F.2d 441, 448-49 (8th Cir. 1986).{/footnote} including the nature of the record itself.{footnote}In re Department of Energy Stripper Well Exemption Litig. v. DOE, 874 F. Supp. 1161 (D. Kan. 1994) (contents of documents as well as other matters of record sufficient to establish their status as business records kept in the course of regularly conducted business).
4 Weinstein & Berger, & 803(6)[02], at 803-199-200 & nn. 5, 9 ("A foundation for admissibility may at times be predicated on judicial notice of the nature of the business and the nature of the records as observed by the court, particularly in the case of bank statements and similar documents.").{/footnote}

2(i). Burden of Proof

The party seeking to admit a business record under this exception to the hearsay rule bears the burden of establishing the requisite foundation.{footnote}Misle v. Misle, 529 N.W.2d 54, 57 (Neb. 1995).{/footnote}

2(i). Foreign Business Records

Foreign business documents are admissible under this hearsay exception.{footnote}U.S. v. Sand, 541 F.2d 1370, 1376-77 (9th Cir. 1976) (Swiss bank records), cert. denied, 429 U.S. 1103 (1977).{/footnote}

2(j). Absence of an Entry

The absence of an entry in a business record is admissible to show that an event never occurred,{footnote}Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d 920, 387 N.E.2d 1241 (1st Dist. 1979); Lubbers v. Norfolk & Western Ry., 118 Ill. App. 3d 705, 454 N.E.2d 1186 (4th Dist. 1983), aff’d, 105 Ill. 2d 201 (inspection records admissible to show failure to inspect).{/footnote} or that something does not exist, if it is something that would ordinarily have been recorded there.{footnote}See also United States v. DeGeorgia, 420 F.2d 889 (9th Cir. 1969 ; Cal. § 1272; Ill. Sup. Ct. R. 236; Podvin v. Eickhorst, 128 N.W.2d 523 (Mich. 1964); Commerce Union Bank v. Horton, 475 S.W.2d 660 (Tenn. 1972).{/footnote}
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memoranda, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

Proving the absence of entries in business records by affidavit has been held to violate a defendant’s right of confrontation.{footnote}People v. Dickinson, 130 Cal. Rptr. 561 (Cal. Ct. App. 1976).
Contra United States v. Cruz, 492 F.2d 217, 220 (2d Cir.), cert. denied, 417 U.S. 935 (1974) (certificate reciting that a diligent search was conducted and disclosed no registration of destructive device held not to violate defendant’s right of confrontation).
State v. Rogers, 426 A.2d 1035, 1040 (N.J. Super. Ct. App. Div. 1981) (affidavit stating that defendant had no permit for revolver did not violate defendant’s right of confrontation).{/footnote}

2(k). Appeal

It is within the trial court’s discretion to determine whether a foundation has been laid under the business records exception, and to determine whether the circumstances indicate a document’s untrustworthiness.{footnote}United States v. Cincotta, 689 F.2d 238, 243 (1st Cir. 1982), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1983); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); Conoco, Inc. v. Dept. of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996) (trial court has “broad discretion”).{/footnote} As is generally the case with rulings on admissibility, rulings on the admissibility of evidence under this exception are reviewed for an abuse of discretion.{footnote}United States v. Young Bros., 728 F.2d 682, 694 (5th Cir. 1984); United States v. Croft, 750 F.2d 1354, 1364 (7th Cir. 1984); Tongil Co. v. The Vessel "Hyundai Innovator", 968 F.2d 999, 1000 (9th Cir. 1992) (reversing judgment in bench trial where plaintiff’s entire case consisted of business records supported by written declarations; court held that foundation for business records exception must be laid by live testimony).
City of Idaho Falls v. Beco Constr. Co., 850 P.2d 165, 171 (Idaho 1993); Adamatic v. Progressive Baking Co., 667 A.2d 871 (Me. 1995) (reviewed for clear error).{/footnote} See also APPELLATE REVIEW–General Standard of Review.

3. The Residual Hearsay Exception

Records which fail to meet the requirements of the business records exception have nonetheless been admitted under the residual excpetion to the hearsay rule.{footnote}FRE 803(24); United States v. Blackburn, 992 F.2d 666, 670-72 (7th Cir.), cert. denied, 114 S.Ct. 393 (1993); United States v. McPartlin, 595 F.2d 1321, 1350 (7th Cir. 1979); United States v. Pfeiffer, 539 F.2d 668 (8th Cir. 1976); Keyes v. School Dist. No. 1, Denver, Colo., 439 F. Supp. 393, 411 (D. Colo. 1977).{/footnote}

4. The Confrontation Clause

4(a). The Confrontation Clause Generally{footnote}See CONFRONTATION.{/footnote}[942]

Even where hearsay is admissible under one of the exceptions to the hearsay rule, in criminal cases its admission may nonetheless violate the defendant’s right of confrontation. In deciding whether the admission of hearsay violates a defendant’s right to confront witnesses, the first question to be asked is whether the hearsay declarant is present at trial and available for cross-examination. If so, admission of the declarant’s hearsay statement is not unconstitutional. If the hearsay declarant is not present at trial and available for cross-examination, the prosecution must demonstrate that the hearsay bears sufficient "indicia of reliability." Reliability may be inferred without more where the evidence falls within a "firmly rooted hearsay exception." If the hearsay consists of testimony at a prior judicial proceeding, the "rule of necessity" requires that the prosecution either produce the declarant or demonstrate the declarant’s unavailability.

4(b). Application to Business Records

The business records exception has been held to be a "firmly rooted hearsay exception," thus satisfying the reliability requirement of the Confrontation Clause.{footnote}Ohio v. Roberts, 448 U.S. 56, 66 n. 8 (1980) (dicta); U.S. v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996); United States v. Keplinger, 776 F.2d 678, 695 n. 7 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986); United States v. Roulette, 75 F.3d 418, 422 (8th Cir.), cert. denied, 117 S. Ct. 147 (1996); United States v. Miller, 830 F.2d 1073, 1077 (9th Cir. 1987), cert. denied, 485 U.S. 1033 (1988); United States v. Norton, 867 F.2d 1354, 1363 (11th Cir.), cert. denied, 491 U.S. 907, 493 U.S. 871 (1989).
People v. Maki, 156 Cal. App. 3d 1021, 203 Cal. Rptr. 359 (Cal. App. 1984); Brown v. State, 1997 Ga. LEXIS 279 (Ga. 1997); People v. Lendabarker, 575 N.E.2d 568, 580 (Ill. Ct. App. 1991); Chapman v. State, 628 A.2d 676, 680-81 n.3 (Md. 1993); State v. Sutherland, 939 S.W.2d 373, 378 (Mo. 1997); State v. Webb, 638 N.E.2d 1023 (Ohio 1994); Huff v. State, 897 S.W.2d 829, 843 (Tex. App. 1995).
See also McCormick, Evidence §§ 281-290 (Strong ed. 1992) (most states have long recognized a business records exception to the hearsay rule.);
{/footnote} Because business records ordinarily do not consist of testimony, the prosecution need not meet the "rule of necessity.”{footnote}U.S. v. Moran, 919 F.2d 770 (1st Cir. 1990), cert. denied, 500 U.S. 910, (1991); U.S. v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996).{/footnote}

The admission of foreign business records under 18 U.S.C. § 3505 has likewise been held not to violate a defendant’s Confrontation Clause rights.{footnote}United States v. Sturman, 951 F.2d 1466, 1490 (6th Cir. 1991), cert. denied, 112 S. Ct. 2964 (1992); United States v. Miller, 830 F.2d 1073, 1077-78 (9th Cir. 1987), cert. denied, 485 U.S. 1033 (1988); United States v. Ross, 33 F.3d 1507, 1515-16 (11th Cir. 1994); United States v. Gleave, 786 F. Supp. 258, 276-280 (W.D.N.Y. 1992), aff’d in part, rev’d in part on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994); United States v. Hing Shair Chan, 680 F. Supp. 521, 522 (E.D.N.Y. 1988).{/footnote}

Bibliography

Lynn McLain, Self-Authentication Of Certified Copies Of Business Records, 24 U. Balt. L. Rev. 27 (1994).

LawServer