Also known as: regularly-kept records exception · 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 when the record was made at or near the time of the matter recorded by someone with knowledge. The record must have been kept in the course of a regularly conducted business activity and made as a regular practice of that activity.
Roberto Reyes, injured in a train collision, offers a report prepared by Redline Automotive employees detailing the crash. The employees created the report under company policy but after the accident occurred and with knowledge that litigation was likely. The court excludes the report because its preparation was driven by the prospect of suit rather than the ordinary conduct of rail operations.
In a prosecution involving forensic testing, the state offers a DNA analysis report prepared by a private laboratory. The lab technician recorded the results at the time of testing as part of the lab's standard workflow for all customer submissions. The court admits the report under the regularly kept records exception because the entries were made in the ordinary course of the lab's commercial operations.
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A record loses the protection of the exception when its primary purpose is to prepare for litigation rather than to document the regular conduct of the enterprise's business. Courts examine whether the record would have been created in the same form absent the prospect of suit.
Supporting sources
Yes. The exception requires that the informant who supplied the data be acting under a business duty to transmit the information. Statements from third parties who owe no such duty remain inadmissible hearsay even if the record itself is kept regularly.
Supporting sources
Police reports may satisfy the formal requirements of the exception but are often excluded in criminal cases when offered against the defendant because they constitute evaluative or investigative material prepared by law enforcement. The public records exception contains specific restrictions that courts generally will not allow parties to circumvent by invoking the business records rule instead.
Supporting sources
…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…