Business Records Exception to the Hearsay Rule.

Dustin Compton
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At a criminal trial, many documents can be excluded as inadmissible hearsay.  However, there are certain exceptions to the hearsay rule.  A common exception is the business records rule. Yet, the inquiry does not end there as the specific document and the manner in which it was kept must be scrutinized to determine whether it meets the exception.

The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. McCormick §§281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.

A critical point is that absence of routineness raises lack of motivation to be accurate.  Thus, the attorneys need to fully investigate and present support for the position that the records were/were not developed as a part of a routine daily business practice.

It is important to note that a business record is separate and distinct from the public records exception because the public records exception has a necessary element of legal requirement. "A record cannot be denominated a public record within our understanding of the meaning of the term unless, being required to be kept, it is so recorded or filed that it may be subject to inspection by any person for information as to what it shows. We decline to extend the recognized exception to the rule against admission of hearsay evidence to include instruments which, although they may have been kept by a public official in the course of his duties, were not explicitly required to be kept, were not formal orders issued pursuant to such official's statutory authority, and by the matters revealed therein appear to have been made voluntarily. Douvas, 1954 OK 8.

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