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

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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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