Also known as:business record hearsay exception · business records exception · FRE 803(6) · business records rule
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception that permits admission of a record of an act or event when the record was made at or near the time by someone with knowledge. The record must have been kept in the course of a regularly conducted business activity and it must have been the regular practice of that activity to make the record.
Sources & Authorities
How it applies
Common Examples
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Accident Report Prepared for Litigation
Bayside Shipping's safety officer prepared an internal accident report after a cargo crane collapsed and injured a worker. The report followed the company's standard form and was completed the same day. When the injured worker later sued, Bayside offered the report under the business records exception. The court excluded it because the primary purpose of the report was to prepare for potential litigation rather than to document ordinary shipping operations.
Lab Report Offered in Criminal Trial
In a prosecution against Bradley Banks for drug possession, the state offered a forensic laboratory report analyzing a seized substance. The report was generated in the ordinary course of the lab's testing work and was offered through a supervising analyst. Banks objected on confrontation grounds. The court considered whether the report qualified as a business record or instead constituted testimonial hearsay that required the analyst's live testimony.
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Cases
Study Supplements
Williams v. Illinois567 U.S. 50 (2012)
Common questions
Frequently Asked
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What foundational elements must be shown to admit a record under the business records hearsay exception?+
The record must have been made at or near the time of the event by a person with knowledge. It must have been kept in the course of a regularly conducted business activity and making such a record must have been the regular practice of that activity. A custodian or other qualified witness must lay this foundation.
Supporting sources
When does a record prepared in the ordinary course of business lose the protection of the business records exception?+
A record loses the exception when its primary purpose is to prepare for litigation rather than to document the regular conduct of the business. Courts examine whether the maker was acting in the usual course of the enterprise or instead was creating evidence for anticipated legal proceedings.
Supporting sources
Can statements from third parties outside the business be admitted through the business records exception?+
No. The exception requires that the informant who supplied the information was under a business duty to report it accurately. Statements from outsiders who have no such duty remain inadmissible hearsay even if they appear in an otherwise qualifying business record.
Supporting sources
567 U.S. 50 (2012)Evidence
…would entitle the defendant to Confrontation Clause protection. Cf. 2 Wigmore, Evidence §1527, at 1892 (in respect to the business records exception, “there must have been no motive to misrepresent”). Thus, the defendant would remain free to show the absence or inadequacy of the alternative reliability/honesty safeguards, thereby…