Class 19: Hearsay Exceptions for Business Records, Public Records and (somewhat) Related Exceptions - Mar. 19 Flashcards
What are the foundational requirements for business records? (Merritt)
(A) the record 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 Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
(FRE 803(6))
Is the business-records exception to the rule against hearsay limited to for-profit businesses? (Q)
No. The business-records exception to the rule against hearsay is not limited to for-profit businesses.
Is the absence of a matter from a business record admissible under the business-records exception to the rule against hearsay? (Q)
Yes. The absence of a matter from a business record is admissible under the business-records exception to the rule against hearsay. The absence of a matter may, therefore, be used as evidence of the matter’s nonexistence if it would ordinarily have been contained in the record.
(FRE 806(7))
Do records of law enforcement observations fall within the public-records exception to the rule against hearsay? (Q)
No. Records of law enforcement observations generally are excluded from the public-records exception to the rule against hearsay in criminal cases.
(FRE 803(8) Notes)
Under the public-records exception to the rule against hearsay, may the prosecution introduce findings resulting from an authorized investigation in a criminal case? (Q)
No. Under the public-records exception to the the rule against hearsay, the prosecution may not introduce findings resulting from an authorized investigation in a criminal case.
However, these findings are admissible against the government by a defendant. This exclusion from the hearsay exception arises from the defendant’s rights under the Sixth Amendment Confrontation Clause, which guarantees a criminal defendant the right to cross-examine any witnesses against him.
Although the prosecution may not introduce the findings under the public-records exception, the prosecution may be able to introduce the findings through the direct testimony of an investigating officer, or other non-hearsay means.
Does the public-records exception to the rule against hearsay require that the public record be kept in the ordinary course of business? (Q)
No. The public-records exception to the rule against hearsay does not require that the public record be kept in the ordinary course of business. The public-records exception also does not require a qualified witness to testify or provide an affidavit in order to admit the records.
These are important distinctions from the business-records exception, which requires both that the records be kept in the ordinary course of business and that a qualified witness testify or provide an affidavit as a predicate to the admission of the business records.
Is a record of a birth, death, or marriage admissible if it is reported to a public office in accordance with a legal duty? (Q)
Yes. A record of a birth, death, or marriage is admissible if it is reported to a public office in accordance with a legal duty.
(FRE 803(9))
Are hearsay reports prepared by private individuals but filed with public agencies generally admissible under the public-records exception to the hearsay bar? (Q)
No. Hearsay reports prepared by private individuals but filed with public agencies are not generally admissible under the public-records exception. Reports prepared by private individuals are not considered records or statements of a public office, even if an individual is required by law to file the report.
Is the absence of a public record admissible to prove that a particular matter did not occur? (Q)
Yes. The absence of a public record is admissible to prove that a particular matter did not occur. Testimony or a certification that a diligent search failed to disclose a public record is admissible to prove that (1) the record does not exist or (2) a matter did not occur, if the public office regularly kept records for matters of that kind. This exception is similar to the exception that permits the admission of the absence of a business record.
If the prosecution in a criminal case intends to use a certification, rather than testimony, to prove the record’s absence, it must provide written notice 14 days in advance of trial so the defendant can object to the use of the certification.
(FRE 803(10))
What foundation must be laid for the public records hearsay exception? (Merritt)
(A) The record sets out:
(i) the office’s activities;
(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
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
(FRE 803(8))
What are the sixth amendment concerns for the public records hearsay exceptions? (Merritt)
Subsection (A)(ii) excludes all records of observations made by law-enforcement personnel when offered in a criminal case.
This exclusion stems from the two concerns discussed in the Introduction:
(1) law-enforcement personnel have a strong interest in ensuring that criminal defendants are convicted, so their observations may not be neutral; and
(2) the Sixth Amendment guarantees criminal defendants the right to confront witnesses against them.
(FRE 803)
When may police records be considered business records? (Q)
Police records may be considered business records in civil cases only.
Are business records prepared in anticipation of litigation admissible hearsay under the business records exception? (Q)
No. Business records prepared in anticipation of litigation are not admissible under this exception because they lack the requisite trustworthiness.
What is the scope of the business-records exception (what all does it cover)? (Q)
The scope of the business-records exception covers any business, organization, or occupation, regardless of its profit status. Therefore, the exception applies to entities such as schools, hospitals, churches, and sole proprietorships. It covers opinions and diagnoses recorded in the ordinary course of business and even illegal records that are kept in the course of a criminal enterprise.
What is an ancient document? (LII)
An ancient document is a statement in a document that was prepared before January 1, 1998, and whose authenticity is established. (FRE 603(16))
