1. There are lots of exceptions for written documents found in Rule 803. We will focus on the most important ones:
a) Business records, 803(6)
b) Public records, 803(8).
c) There are exceptions for other kinds of records that are important in litigation, such as records of past recollection [(803(5)], records of vital statistics
[803(9)], and market reports and commercial lists [803(17)], but they all have easy self-explanatory foundations.
2. Remember that admissibility under one of these exceptions is a question of foundation and what has been proved, not reality. A document is not a business record because it is the record of a business , nor is it an official record because it comes from a government office. The only question is whether the foundation has been laid. A document is only a piece of paper until someone lays a foundation. If you're suing the welfare dept, and trying to get their records into evidence, they could be business records, official records, admissions, past recollection recorded, or not hearsay at all, depending on the circumstances and what kind of foundation you can lay. Just because it is an official record does not make it an "official record"
3. These records frequently have hearsay within hearsay problems . Business records may describe both the personal knowledge of employees and also things told to employees by outsiders. The former is covered by the business record exception, the latter is not. It needs its own reason why it is not hearsay.
4. You must distinguish business records from documents with independent legal significance, from admissions of the party-opponent. Assume a dispute with your landlord over the return of your security deposit. The lease itself is not hearsay at all -- it has independent legal significance. The analysis of a report prepared by the landlord's maintenance staff depends on who is offering it. If you offer it against the landlord, because it reports "no damage," then it is admissible as an admission under 801(d)(2), and is not hearsay at all. If the landlord offers it against you, because it documents extensive damage, he can get it in only if he establishes the foundation for a business record.
5. You must distinguish business & public records from other business and official documents. These exceptions are needed only if the document contains an assertion, i.e., a factual description of an event. An employee handbook setting out the procedures for filing a grievance is not hearsay at all because it doesn't describe an event.
6. Computer records are treated just like any other kind of business or public record.
7. The key elements of business records foundation are:
A) the event being described must be a regular business activity, not just something that happens in the course of running a business.
B) the person furnishing the description must be an employee with personal knowledge.
C) the record must be created at or near the time of the event
D) creating the record must be a regular business practice and not have been created for some special reason, such as litigation.
E) the foundation may be laid by live witness or through affidavit.
8. The key foundation elements of public records are:
A) the event being described or the findings being made must be within the scope of responsibility of the government agency. The FBI can report about drug
conspiracies but not wetlands. The EPA can report about wetlands but not drug conspiracies.
B) the person furnishing the description must be a public official with personal knowledge
C) the record must be "certified," i.e., stamped by the public office indicating it is a true copy of the original.
9) Important limitations on the public records exception are:
A) they may not be used against criminal defendant
B) they may not be obviously untrustworthy. In the public records context, that usually means prepared in anticipation of litigation or to cover someone's
political butt, e.g., a NSA report containing factual findings that weapons of mass destruction exist in Iraq
Questions? Email tanford@indiana.edu and refer to 1501.