The Business Records Exception to Hearsay and the Admissibility of Underlying Scientific Evidence Contained in the Record
written by NITA guest bloggers Marina Tous Clots and Michael J. Dale – article originally published to The Legal Advocate on March 9, 2016
Everyone is familiar with the business records exception to hearsay contained in the Federal Rules of Evidence (FRE) and in corresponding state rules of evidence. And everyone knows that not everything contained in the business record comes into evidence pursuant to that exception. The most obvious exception to the business record exception is hearsay within the business record. However, for the hearsay within the document to come into evidence, the statement itself must be relevant, and then there must be a separate exception to hearsay or a non-hearsay purpose for the underlying statement within the business record.
But what if the business record itself or the record within the record contains scientific information? For example, suppose in a tort, employment, or child welfare case, a party wishes to put into evidence scientific tests where somebody’s substance abuse is at issue or to put into evidence a business record that contains within it a scientific test. Suppose the test is a hair follicle or a urinalysis test.
This blog post discusses why the scientific information may pass the business records exception yet may still be subject to other evidentiary concerns like relevance and probative weight.
The evidentiary starting point is FRE 801(c), which defines hearsay as “a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
Under this definition, there is no room for doubt that scientific tests introduced to prove or disprove someone’s use of drugs fall within the definition of hearsay.
The next and equally obvious point of evidentiary reference is the business record exception to hearsay. FRE 803(6) permits the introduction of business records, including scientific facts, regardless of whether the declarant is available as a witness. The elements of this exception, as we know, are:
All these conditions are shown by the testimony of a qualified witness or a certification that complies with FRE 902(11). Assuming that the proponent of the scientific tests can prove all of these elements, the business record exception will be met and the tests will overcome a hearsay objection.
However, even if the documents fall within the business record exception, the entire document will not necessarily be admitted into evidence. Again, as we know, business records oftentimes describe both the personal knowledge of employees and things told to employees by third parties.
The third level of analysis occurs in situations where an out-of-court statement that falls within the business record exception contains another out-of-court declaration from a person other than the one who wrote the purported evidence. This is what we commonly refer to as hearsay within the business record or hearsay within hearsay. An example of hearsay within the business record would be a hair follicle or urinalysis test taken by an independent drug-testing agency and relied upon by a doctor when drafting her medical report.
FRE 805 states that hearsay within the business record is not excluded from evidence if each part of the combined statements conforms with an exception to the rule against hearsay. This means the tests must satisfy an independent hearsay exception or non-hearsay test and they must be found to be independently relevant.
Relevance and Probative Weight
To illustrate this matter, it is useful to take a closer look at what the results of our example—hair follicle or urinalysis tests—tell us. These tests analyze organic samples for traces of drugs. Depending on the tissue or fluid used, the tests can determine whether there are existing traces of drugs for a specified period of time. In the case of urinalysis, the tests show the use of drugs for a period of time prior to the taking of the test, depending on the drug. For hair follicle testing, it is generally accepted to be longer, between six to twelve months of prior drug use. However, nothing on the face of the test explains any of this. The business record exception neither explains the relevance of the test nor whether it is accurate
Thus, the relevance problem is twofold: 1) What does the test show? In other words, what is its relevance? and 2) Was the test properly administered? If so, are the results accurate?
FRE 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
The issue here is that generally, nothing on the face of drug test explains its significance, or what it proves. Therefore, one could think that there could be a potential objection regarding the relevance of the test.
However, it is generally accepted that FRE 401 is an evidentiary starting point and that there are very few things that are kept out by this rule. Even if nothing on the face of the test explains exactly what the results mean, courts generally accept them into evidence so that their significance can be explained at a later stage.
Once we have established that the underlying scientific tests within the record would be deemed independently relevant, the results would only show that during the period of time covered by the test, the person had taken drugs. The results do not specifically indicate the amount or frequency in which the drugs were taken. Nor do they show that the test was properly administered.
Probative Value: The Significance and Accuracy of the Results
The last and perhaps most significant issue is this: even if the underlying scientific tests eventually get admitted into evidence, their significance and accuracy can still be challenged. Thus, a qualified witness should testify on direct examination as to the proper administration of the test and the test’s meaning and accuracy. There are, in turn, at least two obvious ways in which to attack the underlying scientific evidence: 1) deposing the person who carried out the tests or a qualified witness to show inadequacies in the way the tests were carried out, and 2) offering an expert witness’s testimony to challenge the findings introduced on direct examination.
An exhibit may only be admitted into evidence after a full evidentiary foundation is established. Oftentimes we are faced with business records that contain underlying scientific evidence. In the case of hair follicle or urinalysis tests, nothing on the face of the test explains the relevance of the test nor whether it is accurate. In those instances, the question arises as to whether those underlying scientific tests are admissible into evidence. The answer is that the tests must independently be found to be relevant and then they must satisfy an independent hearsay exception or non-hearsay test. If the tests satisfy these requirements, they will come into evidence. Once the tests are admitted into evidence, they can still by attacked by deposing the qualified witness or by offering an expert witness’s testimony to challenge the accuracy of the results.
Marina Tous Clots is a Spanish attorney, a graduate of the University of Barcelona, and a dual-degree law student at Nova Southeastern University in Fort Lauderdale, Florida. She is a research assistant for Professor Michael J. Dale. She can be reached at firstname.lastname@example.org.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at email@example.com.
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