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Question 1

What are the exceptions that are included under the written exceptions category to hearsay?

Answer 1

– Business records
– public records/official records
– Commercial lists 
– Former testimony
– prior judgments
– learned treatises
– Residual exception
– impeaching the hearsay declarant

Question 2

What is included in the business records exception to hearsay?

Answer 2

This is a hearsay exception for a public record of an act, event, condition, opinion, or diagnosis of an organization made and kept in the ordinary course, at or near the time of events, by someone with a duty to reliably record or report, and it must not lack trustworthiness

Question 3

What is the rationale behind business records being an exception to hearsay?

Answer 3

Peoples jobs and livelihoods depend on them accurately making and keeping records for their day-to-day business, plus there’s not much motivation to fabricate and a lot to ensure accuracy. There is high confidence in a document’s accuracy when it is the result of routine practice

Question 4

What are the elements involved in business records as a hearsay exception?

Answer 4

• The document is a record of a business or organization
  – The record is made by someone with knowledge and a duty to record or report of accurately
  – document is made at or near the time of the events it records
  – it is made and kept in the ordinary course of a regularly conducted activity of the business
  – making the record was a regular practice of that activity
  – above elements must be shown by the testimony of a custodian or qualified witness

Question 5

What are the different businesses that count for their records for the business records exception to hearsay?

Answer 5

Any business or organization - it can be formal or informal, and it can be for profit or not for profit. I.e.: solo attorneys, travelling preachers, anything that is a day-to-day occupation or activity

Question 6

Is it possible under the business records exception to have multiple levels of hearsay within an organization?

Answer 6

Yes, if each level has a duty to report or record accurately

Question 7

If a witness at an accident tells the police “defendant had the red.“ And the police officer writes it down in an incident report, then at trial, the plaintiff offers the report into evidence. Would that be allowed under the business exception to hearsay?

Answer 7

No, because even though the report was a document made and kept in the ordinary course of business by the police department, and the report was made soon after the accident, and the police had a duty to record accurately, the source of the information, which was the witness, had no duty to report it accurately. So a witness’ statement lacks reliability and therefore cannot be a source of information in a business record

Question 8

Can other exceptions apply to allow multiple levels of hearsay to come in when business records exception applies for one of the levels?

Answer 8

Yes. For example, if right after a crash, a witness runs to an officer and says, “defendant had the red light!“ At trial, the officer’s report is entered into evidence. This is OK because the first statement was an excited utterance, and then the officer’s is a business record because he had a duty to record accurately what the witness had told him

Question 9

If at the scene of a crash, the witness tells the first cop “defendant had the red light.“ Then cop 1 tells cop 2 what the witness said. At trial, cop 2 testifies about what cop 1 said the witness said. Would that work under the business records exception to hearsay?

Answer 9

No, because no exception would apply to the witness’ statement to cop 1. If that statement had been an excited utterance to cop 1 it would be OK because there would be an exception for both

Question 10

What is the rule for multiple layers of transmission within an organization for the business records exception to hearsay to apply?

Answer 10

As long as the source is reliable, there can be multiple layers of transmission within the organization, and if each link in the chain has a business duty, then it works

Question 11

If the plaintiff is a psychologist that is suing a patient who didn’t pay, and the plaintiff calls his secretary to lay foundation for billing statements as business records. If the secretary testified that he reviews the plaintiff’s appointment calendar at the end of the month where the plaintiff writes that the client cancelled or showed up for an appointment, and the secretary uses that to generate billing statements for each client, would that be OK as multiple levels under the business records for a hearsay exception?

Answer 11

Yes because multiple levels of hearsay are allowed in an organization if each level involves a business duty to accurately record or report. The plaintiff had a duty to accurately record appointments in the calendar and the secretary had a duty to accurately transcribe appointments into billing statements

Question 12

What is the reason for the timing rule in the business records exception that the record must be made at or near the time of the events it records or reflects?

Answer 12

Memories fade over time, so documents that are written a long time after the fact are less reliable

Question 13

What does it mean for business records exception to hearsay that a document must be made in the ordinary course of business?

Answer 13

The record must be made and kept in the course of a regularly conducted activity of a business/organization/occupation/calling

Question 14

What is the reason for the element of business records exception that requires that the record be made in the course of a regularly conducted activity of a business or organization?

Answer 14

If the business relies on it to function, it is unlikely to be fabricated

Question 15

If a McDonald’s customer slipped on a wet spot, and the manager types of a memo saying the reason was that the guy was fooling around with his eyes closed, would that count as a hearsay exception under the business records rule?

Answer 15

No, because even though it relates to something within the scope of the manager’s duties, this memo is not routinely made in the course of business. This was just a one-off because he was worried about litigation. So it is not a business record

Question 16

What does it mean under the exception to hearsay of business records that the record must be regular practice?

Answer 16

Making the record must be a regular practice of that activity

Question 17

The business records exception to hearsay has five substantive elements and two procedural ones, what are each?

Answer 17

Substantive:
– business/organization record
– knowledge
– timing
– ordinary course of business
– regular practice 

Procedural:
– testimony from a custodian or qualified witness
– trustworthiness extra where the opponent doesn’t show that there is a lack of trust worthiness

Question 18

What is required under the procedural element of business records exception to hearsay for testimony?

Answer 18

The first five elements of this exception must be shown by testimony of a custodian, qualified witness, or qualifying certification. It isn’t necessary that foundation is laid by the person that supplied the information or prepared the document, because a custodian or other qualified witness’ testimony is enough

Question 19

What is a custodian under the business records exception to hearsay?

Answer 19

Someone that maintains documents, even if he has no role in preparing them. This includes people like secretaries and managers

Question 20

What’s the difference between California and the FRE regarding the testimony element of business records exception to hearsay?

Answer 20

In California you can only use a custodian’s declaration for non-parties. Otherwise you have to have a live witness

Question 21

Is there a rule about whether or not a business record can have an opinion or conclusion in it?

Answer 21

No, documents sometimes have expert opinions or conclusions like medical reports or diagnoses. If that is the case, then the regular expert opinion rules would apply. So if a witness testified live to an expert opinion, they would have to lay foundation about their qualifications

Question 22

What is the difference between California and the FRE regarding opinions in business records?

Answer 22

California only allows opinions if they reflect readily observable acts/events/conditions. So there are very few opinions that are allowed under business records

Question 23

What is involved in the final procedural element of business records as an exception to hearsay that requires extra trustworthiness?

Answer 23

It requires that the opponent doesn’t show that the source of the information or the method or circumstance of the preparation indicate a lack of trustworthiness. This has to be shown by the opponent, who has the burden to prove this

Question 24

What is involved in the hearsay exception of public records/official records?

Answer 24

This is a hearsay exception for records or statements of a public or official office or entity that set forth its activities, matters observed under duty to report, or factual findings pursuant to an authorized investigation (but it doesn’t count if it is offered against a criminal defendant)

Question 25

What is the rationale for the hearsay exception of public records?

Answer 25

Public agencies rely on accurate records, so it’s unlikely someone with doctor an official government document

Question 26

What are the elements to prove the hearsay exception of public records?

Answer 26

Just need any one of these:
- sets out the activities of the public office, OR
– sets out a matter observed while under a legal duty to report, OR
– sets out factual findings from a legally authorized investigation, OR
– trustworthiness

Question 27

What does it mean for the element of public records as a hearsay exception that requires that the record sets out the activities of the public office?

Answer 27

This includes ministerial records, rules and regulations from public agencies, etc. It doesn’t include things like Verizon phone company because that is not a public entity. If the word “state“ is used, it is likely meant to be considered public. I.e.: a state public utility

Question 28

What is included in the element for proving a hearsay exception for public records that requires that the record sets out a matter observed while under legal duty to report?

Answer 28

The matter must be observed by someone with an official duty, so if a statement is involved that was reported to a public official that doesn’t have a legal duty to report, it doesn’t fit here and needs a different exception to apply