If you’ve ever watched a television show that has a court trial in it, you’ve no doubt heard
one of the attorney’s stand up and shout “Objection -hearsay. The question calls for hearsay.”
Then the other attorney stands up and says that the question isn’t calling for hearsay. You then
end up dumbfounded as to what hearsay is and whether the question can be answered or not.
Hearsay doesn’t just involve what people say. It often involves what documents say.
The classic definition of hearsay is that it is a statement made by someone not in the
courtroom. It is a statement that is being offered in evidence to prove the truth of a given matter.
I mention that hearsay is a statement. A statement can be oral or it can be written. A
statement can also involve nonverbal conduct of a person (e.g., gesturing, pointing and facial
expressions) if the nonverbal conduct is intended to be an assertion of fact.
There are many exceptions to the hearsay rule. I want to mention one – records of
regularly conducted activity. This is Rule of Evidence 803(6).
Let’s look at medical records. Medical records consist of reports, records or data
compilations over a period of time. The records are created from information provided at or near
the time the records are created. They are regularly created and they are part of the business of
diagnosing and treating people. Medical records are kept in the regular course of business at a
doctor’s office or in the regular practice of running a hospital. Medical records are allowed in to
evidence because they are deemed to be trustworthy. To keep them out, you have to show that
they are not trustworthy.
But let’s assume the medical records are in Tennessee or some other state. Let’s assume
you want to introduce those records in a New Hampshire courtroom. What do you do?
There’s a rule of evidence that governs the authentication of out of state documents.
Authentication is the process of determining whether someone or something is, in fact, who or
what it is declared to be.
With respect to medical records, we may need a witness to testify that the medical record
in question is what it is claimed to be – but our witness is in Tennessee!
Rule of Evidence, section 902(11) comes to the rescue. This rule deals with certified
domestic records of regularly conducted activity. The rule says that the original or a duplicate of
a domestic record of regularly conducted activity, which would be admissible under Rule 803(6),
and which the custodian thereof or another qualified person certifies under oath – (A) was made
at or near the time of the occurrence of the matters set forth by, or from information transmitted
by, a person with knowledge of those matters; (B) was kept in the course of the regularly
conducted activity; and (C) was made by the regularly conducted activity as a regular practice.
So, we need to draft a certificate (saying the things I just said) and we need it signed by a
person in authority – usually the custodian of the records. In some cases, it might also be
necessary to get a second certificate. In this second certificate, a person in authority certifies that
the first person is, in fact, the custodian of the records.
To get our Tennessee medical records into evidence, we need to provide written notice of
that intention to all adverse parties, and we must make the record available for inspection
sufficiently in advance of its offer in evidence to provide an adverse party with a fair opportunity
to challenge it.
These rules aren’t difficult, but there are so many of them, it’s easy to overlook them.
I’m exhausted just writing about them.