Business and Public Records Hearsay Exceptions, Fed.R.Evid. 803(6) and (8); Multiple Level Hearsay, Fed.R.Evid. 805

Abstract

Business Records: A record of an act, event, condition, opinion, or diagnosis is admissible as an exception to the hearsay rule under Fed.R.Evid. 803(6) if, (A) the records was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Fed.R.Evid. 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. Pursuant to Fed.R.Evid. 101(b)(4) a “record” includes a memorandum, report, or data compilation which pursuant to Fed.R.Evid. 101(b)(6) includes electronically stored information. The hearsay exception for records of regularly conducted business activities, widely referred to as the business records hearsay exception, rests upon considerations of both reliability and necessity. Records of regularly conducted activities cannot fulfill the function of aiding the proper transaction of business unless accurate. The motive for following a routine of accuracy is great and the motive to falsify largely non-existent. More specifically, the reliability of business records is supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, and/or by a duty to make an accurate record as part of a continuing job or occupation. Given the nature of the reliability of business records, it makes no difference whether the records are those of a party or of a third person. Public Records: A record, which includes a memorandum, report, or data compilation, or statement of a public office setting forth (A)(i) the office’s activities, or (A)(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel, or (A)(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, provided (B) that the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness is an exception to the hearsay rule, Fed.R.Evid. 803(8). The exception is based upon the assumption that public officers will perform their duties, that they lack motive to falsify, and that public inspection to which many such records are subject will disclose inaccuracies. In addition, the disruptive effect of bringing public officials into court to testify about matters that have generally been accurately reported and recorded is avoided. Use of a certified copy of the record, see Fed.R.Evid. 902(4) and 1005, also serves the public convenience by saving time and the expenditure of public money. Moreover, the record is likely to be much more reliable than the official’s often hazy recollection. The absence of specific requirements of regular, regular, at, personal knowledge, at or near the time of the event, thus facilitating admission by certified copy of the public record, Fed.R.Evid. 902(4), when no question of trustworthiness has been raised, does not mean that the requirements of regularity, contemporaneousness, etc., should not be imposed in determining trustworthiness, i.e., “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness,” Fed.R.Evid. 803(8)(B), when a genuine question is raised. Multiple Level Hearsay: Hearsay within hearsay, often referred to as double level or multiple hearsay, is addressed in Fed.R.Evid. 805, which provides that if each of two or more statements falls within an exception to the hearsay rule, multiple hearsay is admissible. An illustration is the business record coming within the hearsay exception provided in Fed.R.Evid. 803(6), which includes within it information supplied by an informant not himself under a duty to provide such information. If the informant’s statement itself qualifies as a hearsay exception, for example, an excited utterance, Fed.R.Evid. 803(2), the record containing it is admissible provided among others that the person recording the excited utterance was under a business duty to do so. Similarly, if either the original statement or the statement within which the second level statement appears is admissible as not hearsay as defined in Fed.R.Evid. 801(d), provided that the remaining statement is so defined or qualifies as a hearsay exception, the two statements are admissible.