Tuesday, December 14, 2010

Merry Christmas and Happy New Year

By John DiMotto
Today, I want to wish all those persons who have followed this blog a Merry Christmas and a Happy New Year. I have enjoyed sharing my thoughts on various points of law and look forward to continuing to do so in 2011.
With the end of the year in full swing and with a number of things "on my plate" this will be my last post for 2010. I will be back "with fervor" after the first of the year.
"See you all next year."

Tuesday, December 7, 2010

The Wisconsin Rules of Evidence -- The "Business Records" Hearsay Exception

By John DiMotto
Wisconsin Statutes section 908.03(6) sets forth the "Business Records" exception to the general prohibition on the admissibility of hearsay. It encompasses:
1) a memorandum, report, record, or data compilation;
2) in any form;
3) of acts, events, conditions, opinions, or diagnoses;
4) made at or near the time by, or from information transmitted by;
5) a person with knowledge;
6) all in the course of a regularly conducted activity;
7) as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 909.02(12) or (13), or a statute permitting certification;
8) unless the sources of information or other circumstances indicate lack of trustworthiness.
In my experience, this is one of the most misunderstood hearsay exceptions by trial attorneys. Many lawyers believe that any entry in a business record is admissible. Nothing could be farther from the truth.
In order for an entry in a business record to be admissible, all declarants involved in making the specific entry record must be part of the organization which prepared it. If one of the declarants is not part of the organization, an additional level of hearsay is present which must fall into an exception. see State v. Gilles, 173 Wis.2d 101 (Ct. App. 1992); 908.05; 7 D. BLINKA, WISCONSIN PRACTICE, EVIDENCE sec. 803.06, at 481 (1991). In the scenario of a corporation, if an employee of the corporation sets forth in a document made in the course of regularly conducted activity what he saw and did at a meeting, the "Business Records" exception would allow for the introduction of that information. However, if that same employee sets forth what a person, who is not a member of the corporation, said at that same meeting, the statement of that person is not admissible unless some other hearsay exception applies. The "Business Records" exception does not allow admission of a second level of hearsay. The reports cannot establish more than their maker could if he was testifying in court on their subject. see State v. Mitchell, 84 Wis.2d 325, 330 (1978).
It is also important to note that while the custodian, or other qualified witness, who is utilized to introduce the record need not be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of 908.03(6), the witness must have personal knowledge of how the records are made so the witness can say they were made "at or near the time of the event by or form information transmitted by a person with knowledge" and in the ordinary course of regularly conducted activity. see Palisades Collection LLC v. Kalel, 324 Wis.2d 180 (Ct. App. 2010). In the context of collections actions, where a plaintiff buys a debt from a credit card company, the plaintiff, not being a member of the credit card company, could not be the conduit for the introduction of the credit card company's "business records." Personal knowledge as to how the records are kept is foundational.
An interesting issue that I have faced in Termination of Parental Rights (TPR) cases, is whether records that are prepared by a social service agency under contract with the Bureau of Milwaukee Child Welfare (BMCW) to provide services to the subject child and parents and which must be provided to BMCW come under the umbrella of 908.03(6) and are admissible. I have held that if the State can establish that there is an agency relationship between the service providers and BMCW and if the State can establish that the records are kept according to standards set by BMCW, that 908.03(6) applies.
The "Business Records" exception is an important and necessary exception but it can be subject to abuse. A trial court must ensure that the conditions precedent to introduction of evidence under it are met.
In my next blog, I will look at the Public Records exception.