1703

I would argue:

"The diary does not meet the foundation requirements of a business record for four reasons:
1) There is no evidence the entries were made at or near the time of the event described."
2) There is no evidence that extortion was a regularly conducted business activity of Natasha, who is in the drug business."
3) There is no evidence that it was Natasha’s regular practice to record extortion demands and payments."
4) The criminal nature of the activity recorded and the absence of evidence that the entries were for business purposes indicates a lack of trustworthiness."

The proponent of a business record must establish all the elements of a hearsay exception through a combination of evidence and common sense. The defense has not done so in this case.

Questions? Email tanford@indiana.ed and refer to 1703.

Go to problem 17B.

The defendant offers a hotel registration form from the Logan Airport Hampton Inn dated the night of the killing and containing information about the defendant supplied by her. Note the use of business custom testimony (Rule 406) to establish the regular practice of hotel employees. The business record foundation requires proof of the regularity of the event and the routine nature of the record-keeping. In big organizations, such evidence will usually come in the form of habit and custom evidence. The desk clerk cannot possibly remember what this one particular guest did when he checked in a year ago.

If the prosecutor objects that the form is hearsay, and the defense responds that it is a business record, what argument can the prosecutor make in reply? When you have decided, click here.