8: Hearsay exceptions—records Flashcards
Public records exception
There are three sorts of things which may be admissible if set forth in a public record:
(1) the public agency’s actions;
(2) its observations; and
(3) its factual findings.
Testimony as to the absence of a public record, however, is not hearsay and is admissible.
Public records exception: law enforcement
With respect to law enforcement records and criminal defendants, the prosecution can only introduce activities—e.g., “We went to the scene of the crime”—not observations or factual findings.
I.e., the officer must actually testify and be subject to cross examination.
A police report, however, may still come in as a recorded recollection.
Business records exception
A business record is any record or writing of an act or event made in the course of a regularly conducted business activity.
Business records are admissible if they were made:
(1) At or near the time of the event it records;
(2) By a person with knowledge of the event and under a duty to report it (or transmitted by such a person); and
(3) As part of the regular practice of the business to make that kind of record.
Business records exception: law enforcement
Although a police report can qualify under the business records exception, a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement.
Public records: absence of a record
Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove:
(1) that the record or statement does not exist; or
(2) that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind.
In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing.
Business records exception: medical records
Medical records are often included as business records but only to the extent that entries relate to diagnosis or treatment.
Business records exception: police reports
Courts have discretion to exclude business records if the source of information or the method or circumstances indicate a lack of trustworthiness—e.g., if prepared in anticipation of litigation.
Business records exception: absence of a record
Evidence that a matter is not included in a record of a regularly conducted activity may be admissible to prove that the matter did not occur or exist, provided that a record was regularly kept for a matter of that kind.
The opponent may prevent admission by showing circumstances, including the possible source of the information, that indicate a lack of trustworthiness.
