Also known as: FRE 803(6) · Rule 803(6) · 803(6) · business records exception
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception that admits a record of an act, event, condition, opinion, or diagnosis. The record must have been made at or near the time of the matter recorded by someone with knowledge, kept in the course of a regularly conducted business activity, and made as part of the regular practice of that activity.
Falcon Dynamics suffered a derailment. Its safety officer prepared an internal accident report the next day as part of the company's standard safety protocol. When a passenger later sued, Falcon offered the report at trial. The court excluded it because the report was created primarily to prepare for litigation rather than to document ordinary business operations.
In a sexual assault prosecution the state offered a DNA profile report prepared by a private laboratory under contract with police. The analyst who performed the testing did not testify. The defense objected on confrontation grounds. The court held that the report could qualify as a business record under the exception but still required separate analysis of whether it was testimonial.
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No. When the primary purpose of a record is to prepare for litigation rather than to document the regular conduct of the enterprise's business, the exception does not apply even if the record was made according to a regular practice.
A custodian or other qualified witness must testify or certify that the record was made at or near the time of the event by someone with knowledge, that it was kept in the course of a regularly conducted business activity, and that making such records was a regular practice of that activity.
Yes. The rule expressly permits an admissible regularly kept record to include an opinion, provided the opinion satisfies the ordinary restrictions on expert qualifications and proper subjects for expert testimony.
…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…