Also known as: qualified witnesses
Written by attorneys — see sources below.
A person with firsthand knowledge of an organization's recordkeeping practices who can establish the foundational elements for admitting business records under the hearsay exception. The witness need not have created the record or observed the underlying events but must be able to describe the regular course of business and the routine practice of making such records.
Quartz Energy offers its maintenance logs to prove the timing of a pipeline inspection. A records supervisor testifies that the logs were created automatically at the time of each inspection by field technicians using the company's standard software and stored in the ordinary course of operations. The supervisor's description of the system satisfies the foundation requirement even though the supervisor did not perform the inspections.
Apex Logistics offers shipping manifests to prove delivery dates. A compliance officer testifies that the manifests were generated automatically by drivers using the company's standard digital system and retained in the ordinary course of business. The officer's account of routine practices satisfies the foundation even though the officer did not prepare the manifests.
In 1947 Solomon Michelson stood trial in federal court on a charge of bribing a revenue agent. The government introduced evidence that Michelson had made a substantial cash payment to the agent. Michelson testified in his own defense, admitting the payment but claiming the agent had demanded, threatened, and induced it. On direct examination Michelson's counsel brought out that he had been convicted in 1927 of a misdemeanor involving counterfeit watch dials. Cross-examination further showed that in 1930, when applying for a license to deal in second-hand jewelry, Michelson had answered "No" to a question asking whether he had ever been arrested or summoned for any offense. Michelson called five character witnesses who had known him for fifteen to thirty years. Each witness testified on direct examination that Michelson's reputation for honesty, truthfulness, and being a law-abiding citizen was very good, based on conversations with others in the community. On cross-examination the prosecutor asked four of the witnesses whether they had ever heard that Michelson had been arrested on October 11, 1920, for receiving stolen goods. None of the witnesses had heard of the incident. Outside the presence of the jury the prosecutor assured the trial judge that the arrest had occurred and produced a supporting record that defense counsel did not challenge. The trial judge gave the jury limiting instructions on three separate occasions concerning the purpose of the questions. Michelson was convicted on the bribery count. The Court of Appeals affirmed the judgment.
View caseNo. The witness need only have knowledge of the recordkeeping system itself, including how records are created and maintained in the regular course of business.
Supporting sources
Yes. The witness may rely on knowledge of the current system and practices even if the records predate the witness's employment, provided the practices have remained consistent.
The court may exclude the records for lack of trustworthiness even if a qualified witness otherwise lays the foundation, because the circumstances of preparation undermine reliability.
Supporting sources
…incidents disconnected from the one charged as the crime. The second permits the defendant, at his option, to prove by qualified witnesses that he bears a good general reputation or at least one not tarnished by ill-repute. The witness is forbidden, however, to go into particular incidents or details of the defendant's life…