The price of admission: knowing and loving the business record exception


Originally published in Plaintiff Magazine, March 2012.

The defendant’s key witness, who said in a police report that our client had crossed the street during a red light, disappeared into the ether before a deposition was ever taken. Our client said green. The defendant said red. A classic red light/green light case with the added joy of a problem witness. But absent a live witness, the statement was hearsay. When we raised the issue during negotiations, the defense said, “No problem. It’s in a police report. We’ll get it in through the Business Records Exception.”

The Business Records Exception and its importance

The Business Records Exception, or BRE, is a hearsay exception that allows you to get documents admitted as trial evidence. It is codified as California Evid. Code § 1271 (if you’re in federal court see FRE 803; elsewhere consult a practice guide.) Under Cal. Evid. Code § 1271, the writing must be: made in the regular course of business; made at or near the time of the act, condition, or event; identified by a custodian or other qualified witness who describes the preparation; and deemed trustworthy based on the source of information and method and time prepared. A business “includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.” Cal. Evid. Code § 1270.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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