GLF Video Summary: Regular Activity Exception to the Hearsay Rule
We've added a short video summary to our GLF Summary Series for the rule about “Regularly Conducted Activity.” It is found in Federal Rule of Evidence 803(6).
Please recall that ‘‘Hearsay’’ refers to a statement that is not made while testifying at the current trial or hearing and is offered into evidence to prove the truth of the matter asserted in the statement.
A ‘‘statement’’ is what a person said or wrote but also includes nonverbal conduct, if the person intended the conduct as an assertion.
The General Rule is that Hearsay statements are not admissible in court.
The exception of Rule 803(6) says that a record of an act, event, condition, opinion, or diagnosis is not hearsay if the record was made at or near the time by—or from information transmitted by—someone with knowledge; the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; making the record was a regular practice of that activity; all these conditions are shown by the testimony of the custodian or another qualified witness, or by a Rule 902 - or statutory - certification; and the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Rule 902(11) allows certification of records without the necessity of calling a live witness to provide a foundation for them. The written certification provides that foundation by stating the related record--
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The most appropriate way to view Rule 902(11) is as the functional equivalent of foundation testimony offered to authenticate a business record tendered under Rule 803(6) because the declaration permitted by Rule 902(11) serves the same purpose as authenticating testimony.
When used together, Rule 803(6) and 902(11) can be used to efficiently present evidence to the jury in the form of documentation kept in the regular course of business, such as medical records bookkeeping records or other types of documentation to the extent they contain information relevant to the dispute.
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