Criminal trials are frequently the topic of television shows or movies. The drama of the trial is usually shown through the compelling testimony of an eyewitness, the introduction of a murder weapon, or enthralling forensic evidence. The reality of a criminal trial is often more mundane. Although all of those pieces of evidence may be a part of trial, there may be other types of evidence necessary to prove the case. Records of regularly conducted business activity or business records may be introduced in criminal trials and contain facts necessary to prove the elements of the crime charged.
Generally, a written document would be subject to the exclusion of the hearsay rule, § 90.801, Fla. Stat., but an exception to that rule has been created in section 90.803(6), Florida Statutes, for certain business records. The record that is being introduced must qualify as a business record under this statute. A business record is defined as a “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such” record. § 90.803(6), Fla. Stat. Examples of business records include medical records, repair estimates, receipts, bank records, or phone records.
Normally, a business record that meets this definition would be introduced through the testimony of a records custodian. That witness does not need to be the person who created the document, nor does he or she need to have personal knowledge of the events recorded in the document. See Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So. 2d 1369 (1st DCA 1992); Lowe’s of Tallahassee v. Giaimo, 552 So. 2d 304 (1st DCA 1989). The witness does need to have sufficient knowledge about the practices of the business and the creation of that business’s record to testify regarding the business record.
A business record may also be introduced through certification or declaration. § 90.803(6)(c), Fla. Stat. The certification must be sworn to by a qualified party and must certify the proper foundation for admissibility. § 90.902(11), Fla. Stat. To admit the record into evidence, the party offering the record must provide reasonable written notice to opposing counsel and must make the record available for inspection. § 90.803(6)(c), Fla. Stat. Although this process is available to admit business records, the offering party may still want to call a records custodian to testify, so that the witness can explain the records to the jury, especially when the business relies on codes in their records.
Even though a business record appears to qualify for admissibility under section 90.803(6), it may still be challenged on other grounds and must still be otherwise admissible. My office is dedicated to protecting the public by securing convictions. Part of that process is obtaining and introducing all admissible evidence needed to support that conviction.
