Bar Exam — MBE (Multistate Bar Exam)EvidenceMedium
In a criminal trial for embezzlement, the prosecution seeks to introduce a detailed ledger maintained by the defendant's former assistant. The assistant, who created the ledger entries, testifies that she routinely recorded all financial transactions for the business, including those related to the alleged embezzlement, at the time they occurred. She further states that she made the entries accurately and that the ledger was kept in the regular course of business. The defense objects on the grounds of hearsay. How should the court rule?
- ASustained, because the assistant is available to testify, making the ledger unnecessary.
- BSustained, because the ledger is an out-of-court statement offered for its truth.
- COverruled, because the ledger is being offered as a past recollection recorded.
- DOverruled, because the ledger qualifies as a business record.
Show answer & explanationAnswer & explanation
Correct answer: D. Overruled, because the ledger qualifies as a business record.
The ledger meets all the requirements for the business records exception to the hearsay rule: it was made at or near the time by someone with knowledge, kept in the course of a regularly conducted business activity, and it was a regular practice to make such records.
Why the other options are wrong
- A. The availability of the declarant (the assistant) does not preclude the admission of a business record; this exception applies regardless of availability.
- B. While the ledger is an out-of-court statement offered for its truth, it falls under a well-established hearsay exception.
- C. Past recollection recorded requires the witness to have insufficient recollection to testify fully and accurately, and the record to accurately reflect the witness's knowledge at the time. Here, the assistant is testifying directly about the records, and the records are offered as a routine business document, not just to refresh or substitute for a failed memory.
Business Records Exception (FRE 803(6))
A record of an act, event, condition, opinion, or diagnosis if it was made at or near the time by — or from information transmitted by — someone with knowledge, kept in the course of a regularly conducted business activity, and if making the record was a regular practice of that activity.
- Applies to records made in the regular course of business.
- Must be made at or near the time by someone with knowledge.
- The source of information or the method or circumstances of preparation must not indicate a lack of trustworthiness.
- Declarant's availability is immaterial.
Memory trick: Business Records are exceptions because they are Reliable and Routine.