Records Exceptions
Another significant and well-populated category of exceptions for the hearsay doctrine involve various sorts of records. As you may recall from the discussion on the hearsay rule, a hearsay statement need not be oral – it can be, and often is, a statement made in writing. Factual records, prepared by a non-witness, are the most commonly encountered form of hearsay, and often fit into one of the hearsay exceptions in the Federal Rules of Evidence.
1. Recorded Recollection: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. Rule 803(5), Federal Rules of Evidence. In other words, the witness has written down his or her own words earlier, and is now in court to testify about the contents of that record. The witness will be subject to cross-examination about his or her own written statement, thereby providing the required level of reliability for the court to admit the record into evidence. "Bob, now that you’ve reviewed the love letter you sent to Mary, do you remember telling her that you would never leave her?"
2. Records of regularly conducted activity : Paraphrasing the rule, any reports of any business or activity conducted on a regular basis, such as the bank accounts or quarterly reports of a business. Rule 803(6), Federal Rules of Evidence. The theory here is that businesses (or other organizations – they need not be for profit) rely on their own records to conduct their affairs and that they expect those records to be correct. In order to verify that the records are genuine, the custodian of the records – the person who normally keeps them – must identify the records. "Bob, are these the bank statements for your business? Did you withdraw a large sum of money just before Mary filed for divorce?"
Interestingly, the nodes of Everything2 might fall under that exception, since they are records produced in the course of regular activity of the enterprise.
3. Public records or reports and Records of vital statistics: Records of public agencies relating to their own affairs, and vital statistics like birth and death certificates.Rule 803(8) and (9), Federal Rules of Evidence. Of course, these are deemed to be reliable because government and the public rely on them and there is usually little impetus for the government to falsify these types of records. If a dispute arises over their truthfulness, it is usually a central issue of the case subject to other forms of proof.
4. Family records: Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. Rule 803(13), Federal Rules of Evidence. These would come into play in paternity or inheritance cases. Again, these records are not conclusive, and can be challenged by presenting contradicting evidence.
5. Statements in ancient documents: So-called ancient documents are those which are more than 20 years old. Their authenticity must first be established, but it is assumed that 20 years is long enough for an inaccurate document to have been corrected. Also, used to be unlikely that a court battle would be have been anticipated 20 years prior, so the document would presumably not be falsified. Rule 803(13), Federal Rules of Evidence.
The statements which fall within this exception all have some patina of reliability – some other reason exists that these documents will more likely than not be accurate. Accordingly the law regards them with favor when considering their admissibility.