Isabella Carter
Rule 803(6) is a rule that simplifies the authentication of business records and is an expansion of the traditional business records exception. The rule applies to records in any form, including data compilation, and electronic or computer records. The term business is defined broadly to include institutions, associations, professions, and organizations of every kind, whether conducted for profit or not. For a record to be considered a business record, it must have been made at or near the time of the occurrence that it documents and must have been created by a person with knowledge of the occurrence or based on information transmitted by such a person. The rule also allows for the authentication of business records by affidavit or by a document under seal under Rule 902, without the need for live testimony from the records custodian.
| Characteristics | Values |
|---|---|
| Record Type | Any memorandum, report, record, or data compilation |
| Format | Any format, including digital and print |
| Timing | Created at or near the time of the occurrence it documents |
| Creator | Person with knowledge of the occurrence or based on information transmitted by such a person |
| Authenticated By | Records custodian or witness |
| Admissibility | Exempt from constitutional objections based on confrontation |
| Authentication Method | Affidavit or document under seal |
| Source | Non-party with advance notice given to the opponent |
| Trustworthiness | Source, method, and circumstances must be trustworthy |
| Definition of "Business" | Institutions, associations, organizations, professions, and institutions of every kind, whether for profit or not |
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What You'll Learn
- Records must be made at or near the time of the occurrence they document
- Records must be created by a person with knowledge of the occurrence
- Business records are not considered testimonial and are exempt from objections based on confrontation
- Records must be authenticated by affidavit or document under seal
- Records must be from a nonparty, with advance notice given to the opponent
Records must be made at or near the time of the occurrence they document
Rule 803(6) is a useful tool for simplifying and expediting the authentication of business records, and it can be used to avoid the cost and coordination of authenticating them via live testimony from the records custodian. This rule applies to records in any form, including data compilation, and it also applies to electronic or computer records, provided a proper foundation is laid.
The records must be made "at or near the time" of the occurrence that they document. If the record itself indicates when it was created, for example, with a time-stamp on a call log or a date printed on a sales receipt, the record is self-authenticating regarding the time of its creation.
In the case of State v. Frierson, 153 N.C. App. 242 (2002), it was found that the records in question had dates listed, showing they were created at or near the time of the transactions in question and were therefore self-authenticating as to the time at which they were made. Similarly, in State v. Rupe, 109 N.C. App. 601 (1993), it was found that if the records themselves show that they were made at or near the time of the transaction in question, the authenticating witness need not testify from personal knowledge that they were made at that time.
Rule 803(6) was amended in 2015 to allow all business records to be authenticated "by affidavit or by document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness". This amendment expands the method of authentication to all business records, and it is important to note that these records must be from a nonparty, and advance notice must be given to the opponent of the intent to authenticate the records by affidavit.
In addition to the time requirement, the record must be created by a person with knowledge of the occurrence or be based on information transmitted by such a person. This person could be a records custodian, another person with knowledge, or an affidavit.
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Records must be created by a person with knowledge of the occurrence
Rule 803(6) is a useful tool for simplifying and expediting the authentication of business records, as well as avoiding the costs and coordination required for live testimony from a records custodian. This rule applies to records "in any form", including electronic or computer records, and data compilations.
The term "business" is applied broadly to organisations, associations, professions, and institutions "of every kind", whether conducted for profit or not. This includes schools, churches, hospitals, and shelters.
For a record to be admissible as a business record, it must be created by a person with knowledge of the occurrence or be based on information transmitted by such a person. This does not mean that only a person with knowledge of the underlying event can authenticate the record. For example, in State v. Crawley, a records custodian who did not personally send the records testified that he believed them to be accurate, and this was deemed sufficient evidence.
The record must also be made "at or near the time" of the occurrence it documents. If a record indicates when it was created, it is self-authenticating in terms of the time of its creation.
In criminal cases, various types of records are often used as evidence, including cell phone records, credit card receipts, social media posts and messages, and photographs. These records must be authenticated by the records custodian before they can be admitted by the court.
It is important to note that business records are still considered hearsay, but Rule 803(6) provides an exception even when the records custodian is available as a witness.
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Business records are not considered testimonial and are exempt from objections based on confrontation
In the United States, Rule 803(6) is a useful tool for simplifying and expediting the authentication of business records, avoiding the need for live testimony from a records custodian. This rule applies to records in any form, including electronic or computer records, and data compilations.
The business records exception assumes admissibility, but with an escape clause if sufficient negative factors are present. The rule is specific about evaluating reports, which are only admissible in civil cases and against the government in criminal cases.
Business records are not considered testimonial, and are therefore exempt from constitutional objections based on confrontation. This was established in Crawford v. Washington, 541 U.S. 36 (2004). However, it is important to note that the Supreme Court has defined records that are testimonial in nature, which are subject to constitutional objections based on confrontation in the absence of an opportunity to confront and cross-examine the witness in person.
For a record to be admissible, it must meet certain requirements. Firstly, it must have been made at or near the time of the occurrence it documents. Secondly, it must have been created by a person with knowledge of the occurrence, or based on information transmitted by such a person. Additionally, the record must be from a regular business with regularly kept records, and the foundation testimony or certification must be provided. If these requirements are met, the burden shifts to the opponent to demonstrate the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Examples of business records include cell phone records, credit card receipts, social media posts and messages, and photographs.
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Records must be authenticated by affidavit or document under seal
Rule 803(6) is a useful tool for simplifying and expediting the authentication of business records, which can be time-consuming and expensive. This rule applies to records \"in any form\", including electronic or computer records, and allows for the authentication of records by affidavit or document under seal.
The affidavit should be set forth in the caption of the case and should contain the following:
- A statement that the attached copies of the records are true and accurate copies of the original records.
- Confirmation that the attached copies were made at or near the time of the information recorded.
- A statement that it was the regular practice of the business to record the information set forth in the attached records.
- The affiant is familiar with the records and the circumstances under which they were made.
In the case of a document under seal, a record must not be filed under seal without a court order. A party requesting that a record be filed under seal must file a motion or application for an order sealing the record, accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. This motion or application must be served on all parties that have appeared in the case. If the court denies the motion or application to seal, the party may notify the court that the lodged record is to be filed unsealed within 10 days of the order.
It is important to note that the records must be from a non-party, and advance notice must be given to the opponent of the intent to authenticate the records by affidavit. Additionally, the source of information and the method or circumstances of preparation should not indicate a lack of trustworthiness.
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Records must be from a nonparty, with advance notice given to the opponent
Rule 803(6) is a useful tool for simplifying and expediting the authentication of business records, and avoiding the need for live testimony from a records custodian. The rule applies to records in any form, including electronic or computer records, and data compilations.
The rule was amended in 2015 to allow all business records to be authenticated by affidavit or by document under seal under Rule 902 of the Rules of Evidence, made by the custodian or witness. This is providing that the source of information and the method of preparation are trustworthy.
These business records must be from a nonparty, and advance notice must be given to the opponent of the intent to authenticate the records by affidavit. This is a key requirement of the rule. The records custodian does not need to be available as a witness, and business records are not considered "testimonial".
The affidavit should be set forth in the caption of the case and should contain the following:
- A statement that the attached copies of the records are true and accurate copies of the original records, made and kept in the regular course of business.
- A statement that the attached copies were made at or near the time of the information recorded.
- A statement that it was the regular practice of the business to record the information set forth in the attached records.
- A statement that the affiant is familiar with the records and the circumstances under which they were made.
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Frequently asked questions
Rule 803 defines when hearsay statements are admissible in evidence even though the declarant is available as a witness.
A business record is admissible only if the information on the document is furnished by a person who is providing the information pursuant to the regular course of the business activities.
Some examples of business records include cell phone records, credit card receipts, Facebook posts/messages, Instagram photographs, and medical records.
