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Hearsay Exceptions: Business Records

February 19th, 2014
By Jessica Smith

Continuing my series on commonly used hearsay exceptions, we arrive, in this post, at the business records exception. This one comes up a lot in criminal cases. Here are the basics.

Covered Records. The exception applies to “a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses.” N.C. R. EVID. 803(6)

Made at or Near Time of the Event, Etc. The records must be made “at or near the time” of occurrence. N.C. R. EVID. 803(6). If the records themselves show that they were made then, they are self-authenticating in this regard. See, e.g., State v. Frierson, 153 N.C. App. 242, 247-48 (2002) (restaurant’s deposit slips and validation reports were self-authenticating). When the records aren’t dated, witness testimony can provide the required foundation. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse testified that medical records were created contemporaneously with victim’s care).

Knowledge. The record must have been made by or from information transmitted by “a person with knowledge.” N.C. R. EVID. 803(6); see, e.g., State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter intake form completed by the victim was admissible; it was completed at an employee’s direction, getting the form was regular shelter practice, and the employee saw the victim complete the form); see also State v. Marshall, 94 N.C. App. 20, 34 (1989) (information on a pretrial release record was completed by the defendant).

Made in the Regular Course of Business. The record must have been made in the course of a regularly conducted business activity, N.C. R. EVID. 803(6), such as a receipt given by a merchant to a purchaser at the time of sale, State v. Ligon, 332 N.C. 224, 232-34 (1992) (sales ticket), forms completed in connection with business transactions, State v. Holden, 321 N.C. 125, 143 (1987) (firearms form filled out at the time of sale), and bank deposit slips and statements. State v. Frierson, 153 N.C. App. 242, 247-48 (2002).

The exception isn’t limited to records created by what we typically think of as private businesses. The term “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. N.C. R. EVID. 803(6); State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter); State v. Tyler, 346 N.C. 187, 204-05 (1997) (hospital). Although it has been suggested that Rule 803(6) doesn’t cover government records, 2 Brandis & Broun on North Carolina Evidence at 886, case law suggests otherwise. See, e.g., State v. Sneed, 210 N.C. App. 622, 629 (2011) (NCIC database information indicating that gun was stolen); State v. Hewson, 182 N.C. App. 196, 207-08 (2007) (911 event report); State v. Wise, 178 N.C. App. 154, 160 (2006) (sex offender documents); see also State v. Windley, 173 N.C. App. 187, 193 (2005) (fingerprint card).

Lack of Trustworthiness. The exception doesn’t apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” N.C. R. EVID. 803(6); see generally State v. Galloway, 145 N.C. App. 555, 565-67 (2001) (doctor could not recall the source of the information in his report; records of a second doctor contained inconsistencies); State v. Agudelo, 89 N.C. App. 640, 645 (machine-produced telephone records were untrustworthy; the accuracy of the machine had not been verified and the witness had “no idea” when the machine was last checked for maintenance); State v. Brewington, 80 N.C. App. 42, 51-52 (1986) (telephone company records indicating that area payphones had placed collect calls to the defendant’s phone number were untrustworthy; accuracy of the records depended on the trustworthiness of a number provided by an unknown caller).

“Custodian” or Other “Qualified Witness.” The foundational requirements must be “shown by the testimony of the custodian or other qualified witness.” N.C. R. EVID. 803(6). The custodian can be the person who maintains the record for the entity or a person who has custody of the document; the custodian need not have been involved in the record’s creation. See, e.g., State v. Woods, 126 N.C. App. 581, 589-90 (1997) (foundation for hospital records laid by records custodian who was not involved in their creation).

In addition to a records custodian, the rule allows for the foundational requirements to be satisfied by some “other qualified person.” This can include the business owner, State v. Holden, 321 N.C. 125, 143 (1987) (gun shop owner laid foundation for firearms form completed by the defendant and a salesman), or someone who works at the entity that produced the records. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse who worked in the relevant trauma unit and was familiar with the records); State v. Mebane, 106 N.C. App. 516, 530 (1992) (foundation for a time card by company supervisor who was familiar with timecard records and procedures).

At least one North Carolina case suggests that a person who is neither a records custodian nor affiliated with the entity that created the document can be a “qualified witness.” State v. Sneed, 210 N.C. App. 622, 630-31 (2011) (no plain error when trial court held that foundation was laid for printouts from the National Crime Information Center database indicating that a gun in the defendant’s possession had been reported stolen by a detective who was not involved with entering items into the database but used it in his regular course of his business). However, litigants may not want to rely on a plain error case, particularly where other authority requires a tighter nexus between the witness and the entity that created the document. See, e.g., United States v. Porter, 821 F.2d 968, 977 (4th Cir. 1987) (error to allow company’s security officer to lay foundation for company employment records; officer was not the records custodian, did not work in the personnel department where such records were made, and he did not know the record keeping requirements of the company).

Finally, under G.S 8-44.1 and N.C. R. Civ. P. 45, which applies in criminal cases, G.S.15A-802; G.S. 8-61, the foundation for certain hospital medical records may be made by affidavit by the records custodian. See, e.g., State v. Woods, 126 N.C. App. 581, 589 (1997) (State offered medical records by presenting written affidavits/certifications from the custodian of the records).

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6 Responses to “Hearsay Exceptions: Business Records”

  1. Heroy says:

    Thanks for posting this, it is very helpful. I’m having some trouble though with the last paragraph regarding the admission of medical records based on a custodian’s affidavit. I read 15A-802 as adopting Rule of Civil Procedure 45 solely with regard to the issuance and service of subpoeanas (“which must be issued and served in the manner provided in Rule 45…”) and not speaking to or adopting the portion of Rule 45 which provides for authentication of records. State v. Woods seems to dodge the issue because the Defendant did not raise it.

  2. Walter Rand says:

    Wouldn’t the domestic violence intake record still be inadmissible on confrontation clause grounds if the alleged victim did not testify at trial? A statement such as “my husband beat me” is plainly testimonial, isn’t it, even if it is offered primarily for a non-testimonial purpose (such as admittance to a shelter)? Those cases deciding otherwise were decided before the Supreme Court recognized in Crawford that the confrontation clause is still valid law. Hearsay rules of evidence don’t trump constitutional rights, do they?

  3. Jessica Smith says:

    W. Rand:
    1. You are correct that the hearsay rules don’t trump the confrontation clause. After Crawford the prosecution has 2 hoops to jump for admissibility of hearsay statements: (1) Crawford; (2) Hearsay rules. This post is just about the hearsay rules.
    2. The statement “My husband beat me” may or may not be testimonial, depending on the circumstances. For example: Wife calls her mom sobbing and mom asks, “Honey what’s wrong?” Wife says: “Swear you won’t tell a soul but Husband beat me.” That’s almost certainly non-testimonial.

  4. Bob Pickett says:

    There is a statutory provision, NCGS 8-44.1 and 1A-1 Rule 45(c) to allow medical records to be authenticated by affidavit. It could be argued that the affidavit is foundational and non-testimonial. Practically, a non-medically trained records custodian wouldn’t be a very good target for cross examination by the defense. How does this provision apply under Crawford?

  5. Jessica Smith says:

    Heroy:
    Interesting point. But what do you say about G.S 8-44.1, also referenced in that same paragraph?

    • Heroy says:

      Touche. I’m holding to my guns given that 15A-802 given that the statute uses the language, “production of records, books,” etc., as opposed to citing to the Production section of Rule 45, but looking back at Rule 45, I can clearly certainly see your point,. The drafters did not make interpretation easy here by addressing Admissibility in the Production section, did they?

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