In Texas, “hearsay” is defined by the Texas Rules of Evidence (TRE). TRE 801 gives the legal definition of hearsay. TRE 802 says that hearsay is not admissible “…except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority.” This means that hearsay is generally not admissible at court, but if an exception can be found in some other legal source, such as the rest of the Texas Rules of Evidence, then this evidence will be, in effect, taken outside the general prohibition on hearsay.
One common type of evidence that is generally going to be hearsay are business records. There are many reasons one might want to introduce business records at trial. For instance, in a personal injury case, a party may want to introduce records from the plaintiff’s place of employment, showing his pre-injury earning capacity. In a case involving damaged personal property, the repair bill or written estimate of the repair costs, for the property may need to be introduced to prove your damages (or to show that the other party’s allegation of damages is too high). Such business records will generally be considered hearsay because they are usually going to be a written statement made by a person who is not testifying at the trial or hearing, and they are offered in evidence to prove the truth of the matter asserted. (Look back at the definition of “hearsay” found in TRE 801.)
Fortunately, there is an exception within the Texas Rules of Evidence for “Records of Regularly Conducted Activity” that may take such business records outside the general prohibition on hearsay found in TRE 802. This hearsay exception is found in TRE 803(6). However, in order to take advantage of this exception to the hearsay rule, one would need to do some pre-trial or pre-hearing preparation. TRE 803(6) says that in order to take advantage of the hearsay exception, one must have one of two things at the trial or hearing. First, you can have an actual, live person, probably an employee of the business whose records you want to introduce, who is the “…custodian or other qualified witness…”, testify at the trial or hearing that they are the custodian of the business records you are trying to introduce, that the records are kept in the regular course of business, and that it was the regular course of business for an employee or representative of the business with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit the information thereof to be included in the record, and that the record was made at or near the time or reasonably soon thereafter. This first approach involves the difficulty of getting an actual, live person to attend the trial who is the “…custodian or other qualified witness…”. You will probably need to subpoena this person to ensure their attendance at trial.
The second way to take business records outside the general hearsay prohibition of TRE 802, that will usually do the same job, and that is also set forth in TRE 803(6), is to have a “…custodian or other qualified witness…” of the business records you want to introduce sign an affidavit, as set out in Texas Rule of Evidence 902(10). (A sample version of the so-called “business record’s affidavit” is set out, word-for-word, in TRE 902(10), so the reader should look there for a sample copy.) (Note that to be legally effective, this must be notarized.) Then, at trial, instead of having the actual, live, “custodian of records” of the business physically attend and testify, the business records affidavit can generally be used to accomplish the same purpose. However, one should note that Texas Rule of Evidence 902(10) sets forth other important procedures that must be followed before evidence can be introduced at trial under a business records affidavit. For instance, you must file a copy of the business records and the business records affidavit with the clerk of the court for inclusion with the papers in the case in which the business records will be used as evidence. This must be done at least 14 days prior to the day trial is set to begin in the case. You must also give “…prompt notice…”, in accordance with the rules for service set forth in Texas Rule of Civil Procedure 21a, to the other parties in the case that the business records and the business records affidavit are being filed with the clerk. This notice must identify the name and employer of the custodian of records that signed the business records affidavit. The business records and affidavit must also be made available to the counsel for other parties to the litigation for inspection and copying.
Posts
