Business Records

In general

• The business record exception to the hearsay rule is codified at Indiana Rule of Evidence 803(6) . . . .

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)

See Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006)(“Indiana Evidence Rule 803(6) provides such an exception for records of regularly conducted business activity.”)

• Under Evid. R. 803(6), records of regularly conducted business activity are admissible provided that certain requirements are met.

Nash v. State, 754 N.E.2d 1021, 1026 (Ind. Ct. App. 2001), trans. denied(citing Jennings v. State, 723 N.E.2d 970, 973 (Ind. Ct. App. 2000))

See Ground v. State, 702 N.E.2d 728, 730 (Ind. Ct. App. 1998)(“The business records exception to the hearsay rule, Evidence Rule 803(6), permits admission of records of regularly conducted business activity provided that certain requirements are met.”)

Rationale: Business records are imbued with independent indicia of trustworthiness

• “Business records are an exception to the hearsay rule because they are imbued with independent indicia of trustworthiness.”

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)(quoting Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994), reh’g denied, trans. denied)

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013))

• “These indicia are that the business establishes a routine of record-making, that the record is made by one with a duty to report accurately, and that the business relies upon that record in carrying out its activities.”

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)(quoting Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994), reh’g denied, trans. denied)

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013))

Rationale: Business records are accurate and reliable

• [T]he business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.”

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 642 (Ind. 2004)(quoting Wells v. State, 261 N.E.2d 865, 870 (Ind. 1970))

• The reliability of business records stems from the fact that the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, from the precision engendered by the repetition, and from the fact that the person furnishing the information has a duty to do it correctly.

Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997)

Speybroeck v. State, 875 N.E.2d 813, 818-19 (Ind. Ct. App. 2007), reh’g denied(quoting Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997))(“As our Supreme Court has explained: . . . .”)

See In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 642 -43 (Ind. 2004)(quoting Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997))(“As we have observed more recently, the reliability of business records stems in part from the fact that ‘the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition . . . .’”)

Rationale: Makers of business records rely on the records in the regular course of business

• In essence, the basis for the business records exception is that reliability is assured because the maker of the record relies on the record in the ordinary course of business activities.

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643 (Ind. 2004)

• The “regular course” of business “must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business.”

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643 (Ind. 2004)(quoting Palmer v. Hoffman, 318 U.S. 109, 115 (1943), reh’g denied)

• Thus where a company does not rely upon certain records for the performance of its functions those records are not business records within the meaning of the exception to the hearsay rule.

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643 (Ind. 2004)

• It is not enough to qualify under the business records exception to show that the records are made regularly; rather, the court must also look to “the character of the records and their earmarks of reliability acquired from their source and origin and the nature of their compilation.”

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643 (Ind. 2004)(quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943), reh’g denied)

Exception to the rule against hearsay: Text

• The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . .

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Evid. R. 803(6)

Exception to the rule against hearsay: Requirement that the record was made by—or from information transmitted by—someone with knowledge

• The fact that a business record is created by an individual not an employee of the business subject to subpoena does not bar its admission as a record of that business.

Smith v. State, 839 N.E.2d 780, 786 (Ind. Ct. App. 2005)(citing Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994), reh’g denied, trans. denied)

See Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)(quoting Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994), reh’g denied, trans. denied)(“‘The fact that the business record is prepared by a party independent of the business does not negate these [indicia of trustworthiness].’”)

See also Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013))(“‘The fact that the business record is prepared by a party independent of the business does not negate these [indicia of trustworthiness].’”)

• The rule encompasses statements made by a person with personal knowledge to a person with a business duty to record such knowledge.

Nash v. State, 754 N.E.2d 1021, 1026 (Ind. Ct. App. 2001), trans. denied

• So long as the “initial informant has personal knowledge of a fact, that fact may be repeated by an infinite number of people as long as each person in the chain is acting in the regular course of business.”

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)(quoting Williams v. Hittle, 629 N.E.2d 944, 948 (Ind. Ct. App. 1994), reh’g denied, trans. denied)

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013))

• “The recorders themselves need not have first-hand knowledge.”

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013)(quoting Williams v. Hittle, 629 N.E.2d 944, 948 (Ind. Ct. App. 1994), reh’g denied, trans. denied)

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013))

• Moreover, “[t]he sponsor of an exhibit need not have personally made it, filed it, or have firsthand knowledge of the transaction represented by it.”

Embrey v. State, 989 N.E.2d 1260, 1264-65 (Ind. Ct. App. 2013)(quoting Boarman v. State, 509 N.E.2d 177, 181 (Ind. 1987))(alteration in the original)

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1264-65 (Ind. Ct. App. 2013))

See Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006)(citing Payne v. State, 658 N.E.2d 635, 645 (Ind. Ct. App. 1995), trans. denied)(“The witness need not have personally made or filed the record or have firsthand knowledge of the transaction represented by it in order to sponsor the exhibit.”)

• “The sponsor need only show that the exhibit was part of certain records kept in the routine course of business and placed in the records by one who was authorized to do so, and who had personal knowledge of the transaction represented at the time of entry.”

Embrey v. State, 989 N.E.2d 1260, 1265 (Ind. Ct. App. 2013)(quoting Boarman v. State, 509 N.E.2d 177, 181 (Ind. 1987))

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1265 (Ind. Ct. App. 2013))

Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006)(citing Payne v. State, 658 N.E.2d 635, 645 (Ind. Ct. App. 1995), trans. denied)(“[S]uch person need only show that the exhibit was part of certain records kept in the routine course of business and placed in the records by one who was authorized to do so and who had personal knowledge of the transaction represented at the time of entry.”)

• Although a sponsor need not be the custodian or creator of a proffered record, a sponsor still must have knowledge of how the record was created and filed.

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(citing Embrey v. State, 989 N.E.2d 1260, 1265 (Ind. Ct. App. 2013))

• Stated differently, although a sponsor “need not have personally made [the record], filed it, or have firsthand knowledge of the transaction represented by it,” a sponsor must still testify about how the record was made, who filed it, and that the person who filed it was both authorized to do so and had personal knowledge of the transaction.

Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied(quoting Embrey v. State, 989 N.E.2d 1260, 1265 (Ind. Ct. App. 2013))

• Records kept in the ordinary course of business are presumed to have been placed there by those who have a duty to so record and have personal knowledge of the transaction represented by the entry, unless there is a showing to the contrary.

Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006)(citing Payne v. State, 658 N.E.2d 635, 645 (Ind. Ct. App. 1995), trans. denied)

See Nash v. State, 754 N.E.2d 1021, 1026 (Ind. Ct. App. 2001), trans. denied(citing Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998))(“[E]ntries in business records are rebuttably presumed to have been made by a person with personal knowledge of the entry and a duty to record the information.”)

E.g., Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998)(“Absent rebuttal evidence to the contrary, it may be presumed that someone with personal knowledge prepared the challenged bank documents.”)

Exception to the rule against hearsay: Requirement that making the record was a regular practice of the activity

• “[T]he rule unequivocally requires the proponent of business records to establish, by the testimony of the custodian or other qualified witness, that the records are regularly made.”

D.B.M. v. Ind. Dep’t of Child Servs., 20 N.E.3d 174, 179 (Ind. Ct. App. 2014), trans. denied(quoting Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998))

See J.L. v. State, 789 N.E.2d 961, 965 (Ind. Ct. App. 2003)(“Rule 803(6) requires the proponent of evidence to establish at the evidentiary hearing that the data compilation or record is regularly made.”)

• Absent proof that the records are regularly made, the proponent of the business records has not laid a proper foundation under Rule 803(6), and the records are inadmissible.

D.B.M. v. Ind. Dep’t of Child Servs., 20 N.E.3d 174, 179 (Ind. Ct. App. 2014), trans. denied(citing Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998))

Exception to the rule against hearsay: Requirement of authentication

• To be admissible under Rule 803(6), a business record must also be authenticated pursuant to Evidence Rule 901 . . . .

Barrix v. Jackson, 973 N.E.2d 22, 25 (Ind. Ct. App. 2012), trans. denied

See Speybroeck v. State, 875 N.E.2d 813, 819 (Ind. Ct. App. 2007), reh’g denied(“To admit business records pursuant to Rule 803(6), the proponent of the exhibit must authenticate it.”)

• Thus, to admit business records, “the proponent of the exhibit may authenticate it by calling a witness who has a functional understanding of the record keeping process of the business with respect to the specific entry, transaction, or declaration contained in the document,” or by any other evidence (e.g., an affidavit) sufficient to satisfy the requirements of Rule 901.

Barrix v. Jackson, 973 N.E.2d 22, 25 (Ind. Ct. App. 2012)(quoting Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006))

See Houston v. State, 957 N.E.2d 654, 658 (Ind. Ct. App. 2011), reh’g denied, trans. denied(quoting Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006))(“‘To admit business records pursuant to this exception, the proponent of the exhibit may authenticate it by calling a witness who has a functional understanding of the record keeping process of the business with respect to the specific entry, transaction, or declaration contained in the document.’”)

• For more information about authentication, please review Authentication.

Exception to the rule against hearsay: Requirement that neither the source of information nor the circumstances of preparation indicate a lack of trustworthiness

• [E]vidence will be excluded if the source of information contained in the record or the circumstances of the record's preparation indicate a lack of trustworthiness.

Speybroeck v. State, 875 N.E.2d 813, 819 (Ind. Ct. App. 2007), reh’g denied

Expressions of opinion within business records

• Although Rule 803(6) accommodates the inclusion of “opinions” in business records[,] our courts have long recognized, at least in the context of medical or hospital records, that the expertise of the opinion giver must be established.

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 644 (Ind. 2004)

• [H]ospital records may not be excluded as hearsay simply because they include opinions or diagnoses. But, and it is a substantial but, for medical opinions and diagnoses to be admitted into evidence, they must meet the requirements for expert opinions set forth in Evid. R. 702.

Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998)

Schaefer v. State, 750 N.E.2d 787, 793 (Ind. Ct. App. 2001)(quoting Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998))

• For information about Indiana Evidence Rule 702, please review ?

• Furthermore, as the court explained in Fendley v. Ford, 458 N.E.2d 1167, 1171 n. 3 (Ind. Ct. App. 1984)[,] expressions of opinion within medical or hospital records historically have not been admissible under the business records exception because their accuracy cannot be evaluated without the safeguard of cross-examination of the person offering the opinion. While Fendley was decided before the adoption of our Rules of Evidence, we find that its reasoning remains sound and that it continues to apply under the Rules.

Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998)

Survey of case law

• Cases from the Indiana Supreme Court and Court of Appeals reveal that evidence held as admissible [under the business records exception to the rule against hearsay] include: arrest records and arrest reports, including fingerprint cards (Boarman v. State, 509 N.E.2d 177 (Ind. 1987); Lyons v. State, 506 N.E.2d 813 (Ind. 1987); Prentice v. State, 474 N.E.2d 496 (Ind. 1985); Landers v. State, 464 N.E.2d 912 (Ind. 1984); McBrady v. State, 459 N.E.2d 719 (Ind. 1984); Belcher v. State, 453 N.E.2d 214 (Ind. 1983); Pitts v. State, 439 N.E.2d 1140 (Ind. 1982); Underhill v. State, 428 N.E.2d 759 (Ind. 1981); Jennings v. State, 723 N.E.2d 970 (Ind. Ct. App. 2000); Payne v. State, 658 N.E.2d 635 (Ind. Ct. App. 1995), trans. denied; Knuckles v. State, 549 N.E.2d 85 (Ind. Ct. App. 1990)); ATM photos and audit sheets (Stark v. State, 489 N.E.2d 43 (Ind. 1986)); autopsy reports (Thompson v. State, 386 N.E.2d 682 (Ind. 1979)); blood alcohol test results (Reeves v. Boyd & Sons, Inc., 654 N.E.2d 864 (Ind. Ct. App. 1995), trans. denied); blood and DNA test results (Fowler v. Napier, 663 N.E.2d 1197 (Ind. Ct. App. 1996); Humbert v. Smith, 655 N.E.2d 602 (Ind. Ct. App. 1995), trans. denied, aff’d, 664 N.E.2d 356 (Ind. 1996); Burp v. State, 612 N.E.2d 169 (Ind. Ct. App. 1993)); certifications of mailing (Collins v. State, 567 N.E.2d 798 (Ind. 1991)); check vouchers and deposit slips (McDonough v. State, 175 N.E.2d 418 (Ind. 1961), reh’g denied; Cobb v. State, 585 N.E.2d 40 (Ind. Ct. App. 1992)); commitment orders (Funk v. State, 427 N.E.2d 1081 (Ind. 1981), reh’g denied); financial statements (Williams v. Hittle, 629 N.E.2d 944 (Ind. Ct. App. 1994), reh’g denied, trans. denied); insurance policies (Willoughby v. State, 660 N.E.2d 570 (Ind. 1996)); inventory records (Shneider v. State, 40 N.E.2d 322 (Ind. 1942)); job logs tracking performance (Brant Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind. Ct. App. 1987), reh’g denied, trans. denied); log sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind. 1989); Reynolds/Herr v. State, 582 N.E.2d 833 (Ind. Ct. App. 1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind. 1983), reh’g denied, trans. denied); medical reports (Brooks v. Friedman, 769 N.E.2d 696 (Ind. Ct. App. 2002), reh’g denied, trans. denied; Nash v. State, 754 N.E.2d 1021 (Ind. Ct. App. 2001); Schaefer v. State, 750 N.E.2d 787 (Ind. Ct. App. 2001); Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind. Ct. App. 1998); Carmichael v. Kroger Co., 654 N.E.2d 1188 (Ind. Ct. App. 1995), reh’g denied, trans. denied); motel reservation entries (Smith v. State, 455 N.E.2d 606 (Ind. 1983)); motor vehicle registrations and driving records (Allen v. State, 439 N.E.2d 615 (Ind. 1982); Dumes v. State, 718 N.E.2d 1171 (Ind. Ct. App. 1999), clarified on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000); Ruby v. State, 549 N.E.2d 379 (Ind. Ct. App. 1990), reh’g denied; Chambers v. State, 547 N.E.2d 301 (Ind. Ct. App. 1989)); pawn tickets (Darnell v. State, 435 N.E.2d 250 (Ind. 1982)); police technician's reports on blood type (Clark v. State, 436 N.E.2d 779 (Ind. 1982)); prison conduct records (Games v. State, 743 N.E.2d 1132 (Ind. 2001)); records of telephone calls (Brandon v. State, 396 N.E.2d 365 (Ind. 1979); Floyd v. Jay Cnty. Rural Elec. Membership Corp., 405 N.E.2d 630 (Ind. Ct. App. 1980), reh’g denied); school attendance records (J.L. v. State, 789 N.E.2d 961 (Ind. Ct. App. 2003); L.H. v. State, 682 N.E.2d 795 (Ind. Ct. App. 1997)); security agreements (Greco v. KMA Auto Exch., Inc., 765 N.E.2d 140 (Ind. Ct. App. 2002)); time cards (Wiseman v. State, 521 N.E.2d 942 (Ind. 1988), reh’g denied); working papers of audits (Brane v. Roth, 590 N.E.2d 587 (Ind. Ct. App. 1992), reh’g denied, trans. denied).

In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 645 n. 4 (Ind. 2004)

• Among those business records routinely held admissible under Rule 803(6) are medical records.

Perry v. State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011), reh’g denied