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Business Record Exception in DC

The “business record” exception* to the hearsay rule is based on the assumption that regularly kept records tend to be reliable.  As McCormick on Evidence § 286 puts it, “the regularity and continuity of the records are calculated to train the recordkeeper in habits of precision; if of a financial nature, the records are periodically checked by balance-striking and audits; and, in actual experience, the entire business of the nation and many other activities function in reliance upon records of this kind.” 

The exception in D.C. is codified in D.C. Superior Court Rule of Civil Procedure 43-I, as applied to criminal cases through D.C. Superior Court Rule of Criminal Procedure 57(a).  The party seeking the admission of evidence under this exception must demonstrate, through a competent witness, (1) that the record was kept in the regular course of business, (2) that it was the regular course of business to make such a record, and (3) that the record was made at, or within a reasonable time after, the act, transaction, occurrence, or event which it reports.  Meadors v. United States, 519 A.2d 1248 (D.C. 1986).

The proponent of the evidence must also prove that “the maker of the records had personal knowledge of the facts set forth in that record or, if not, that the facts were communicated to the maker, directly or indirectly, by one who was acting in the regular course of business and who had such personal knowledge.  In re D.M.C., 503 A.2d 1280, 1282-83 (D.C. 1986).

The term “business” means “business, profession, occupation, and calling of every kind.”  Super. Ct. Civ. R., 43-I(a).  Records particularly applicable to criminal cases include probation/parole reports, medical/hospital records, drug tests, Drug Enforcement Agency (DEA) reports, pre-trial services reports, and business appointment calendars. 

Reports prepared in anticipation of litigation would not be admitted under this exception.  In Palmer v. Hoffman, 318 U.S. 109 (1943), the engineer of a train involved in an accident prepared a report providing his account of events.  The court concluded that, unlike “payrolls, accounts receivable, accounts payable, bills of lading and the like, these reports are calculated for use essentially in the court, not in the business.  Their primary use is in litigating, not in railroading.” 

*Please note that, on November 22, 2022, the D.C. Council passed D.C. Act 24-661 amending Chapter 5 of Title 14 to the D.C. Code with new language on the business record hearsay exception.