Also known as:business record rule · business records exception · Rule 803(6)
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 a person 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 business to make the record.
Sources & Authorities
How it applies
Common Examples
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Accident Report Prepared for Litigation
After a collision at a Bristol Steel rail yard, the company safety officer prepared a detailed accident report following the firm's standard form. The report was created the same day but was forwarded immediately to the legal department because the yard supervisor expected a lawsuit. When Bristol Steel later offered the report at trial to prove the cause of the crash, the court excluded it because the primary purpose of the document was litigation rather than the ordinary conduct of rail operations.
DNA Report Offered Through Expert
In a criminal prosecution, the state called an expert who relied on a DNA profile generated by an outside laboratory. The laboratory had created the profile in its regular course of testing samples submitted by law enforcement. The expert testified that the laboratory followed its ordinary procedures and that the profile was the type of record the lab routinely maintained, allowing the court to treat the underlying report as a business record for purposes of the expert's testimony.
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Cases
Study Supplements
Common questions
Frequently Asked
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What foundational elements must be shown to admit a record under the business records rule?+
The proponent must show that the record was made at or near the time of the event by a person with knowledge, that it was kept in the course of a regularly conducted business activity, and that making such a record was the regular practice of the business. A custodian or other qualified witness must supply this foundation or the record must be certified.
Supporting sources
Does the business records rule admit statements from third parties who had no duty to report to the business?+
No. An entry is admissible only when the information comes from an employee or from an informant who was under a business duty to convey the information. Statements from outsiders not engaged in the business or under any duty to report are excluded.
Supporting sources
When does preparation of a record in anticipation of litigation prevent its admission as a business record?+
When the primary purpose of creating the record is litigation rather than the regular conduct of the enterprise's business, the record is excluded even if it follows a regular practice. The exception does not extend to documents whose dominant motive is to prepare for suit.
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…