11-20-08 notes_on_business_and_public_records

11-20-08 notes_on_business_and_public_records -...

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2007.spring.ev-course page 1 of 4 The Exceptions for Business and Public Records: A Summary 1. occasional memoranda won’t do; the memoranda or records must be routinely kept in connection with some sort of business or organization: “A . . record … if kept in the course of a regularly conducted business activity , and if it was the regular practice of that business activity to make the ... record ” FRE 803(6) 2. the biased nature of business records ordinarily won’t lead to their exclusion; they must be untrustworthy, which, it is assumed, goes beyond being biased: FRE 803(6) does not allow exclusion of biased records “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness”; this is so despite some early authority (by Justice Douglas) suggesting the contrary 3. but the original source of the evidence fed into the pipeline must have personal knowledge; the original source, the one with personal knowledge, must have a so-called business duty: “made … by, or from information transmitted by, a person with knowledge” FRE 803(6); this requirement that the original link in the business pipeline must have personal knowledge is the rule today despite anything to the contrary that any language in 803(6) might suggest; but compare the exception for public records, which sanctions admissibility of reports not based on the personal observations of persons within a public records and reports pipeline, see FRE 803(8)(C), which sanctions the admission of reports by federal agencies such as the NTSB and the FAA, which are much used in aircraft crash litigation; 4. but factual material is not the only kind of material that qualifies for the business records exception; included are “acts, events, conditions, opinions, or diagnoses.” FRE 803(6). [this may raise the question about the relationship between 803(6) and the rules in
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11-20-08 notes_on_business_and_public_records -...

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