The business records exception to the hearsay rule is arguably the most widely used means of introducing documents into evidence at trial. Depending on the jurisdiction, it can cover a broad range of documents, including: memoranda, reports, charts, invoices, compilations, and much more.
Many jurisdictions define the term “business” very loosely to encompass a wide range of entities. This may include also non-business entities, non-profits, religious or educational institutions, etc.
This article and videos are not state-specific and do not constitute legal advice or opinions. You must always read and follow the laws and court rules in your jurisdiction. Please read The Legal Seagull’s disclaimer before proceeding.
To fully grasp the business records exception, you must first understand the hearsay rule, which generally forbids out-of-court statements that are offered for the truth of the matters asserted. Each jurisdiction may have its own version of the hearsay rule (and business records exception), but many jurisdictions model their rules (partially or fully) on Rules 801-807 of the Federal Rules of Evidence.
A document is inadmissible hearsay unless it qualifies as an exclusion or exception to the hearsay rule. For that reason (and others), understanding the business records exception is critical for anyone considering taking a case to trial!
Once you have followed the steps for introducing your exhibit, you may then proceed to ask the necessary foundational questions for the business records exception. Again, these will differ depending on your jurisdiction.
The record was kept in the course of a regularly conducted activity.
Once you have laid the necessary foundational questions and offered the record into evidence (assuming the judge accepts it), you can then ask specific questions about the contents of the record.
It is important to remember that even if you get a document admitted into evidence with the business records exception, you could still run into a problem with double hearsay (AKA hearsay within hearsay) if the document contains other hearsay statements (e.g., witness statements, handwritten notes, etc.).
In that case, you will likely need to find a valid basis for admitting those internal hearsay statements. This includes showing that the statements (1) do not fall under the relevant statute’s definiton of “hearsay”; or (2) fall under a valid exception or exclusion to the hearsay rule.
Need an example of double hearsay? In the video above, let’s assume the judge agrees that the work schedule is admissible under the business records exception. However, let’s also imagine that there is a handwritten note on the document that says “Spoke to Randy: can’t come in on Tuesday before 11 a.m.” In that case, the party offering the business record into evidence would need to establish that the handwritten note is not hearsay or falls under an exclusion or exception to the hearsay rule.
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