Hearsay: Those "Business Records" Are Not Really Admissible Into Evidence

For further information please call 954-495-9867 or 520-405-1688

================================

It is no surprise that the Banks are attempting to use business records instead of live testimony from witnesses with personal knowledge. That testimony might be laced with perjury exposure for both the witness and the attorney who is the proponent of the witness. So they are trying all sorts of arguments about “stringent audits” and “boarding process” from a corporate representative of a company that had nothing to do with the entries made into the records of any company. In fact, in most cases now, thanks to the shell game of switching servicers, trustees and other parties, the testimony from such a witness is hearsay on hearsay because they are talking about records produced at another company or organization.

An article published by P. Benjamin Zuckerman highlights the point:

The elements to prove that evidence is admissible under the business records exception are straightforward.  If the record (1) was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) it was a regular practice of that business to make such a record, then it is a business record that may be admitted to prove the facts contained in the record.  All the elements must be established.

This all sounds simple enough, but as the Holt case demonstrates, it is necessary that someone with personal knowledge testify how the data was recorded, when it was recorded, by whom it was recorded (i.e., by a person with actual knowledge of what was being recorded), and whether it was done “at or near the time of the event” in conformity with the set procedures of the party (i.e., in the regular course of that company’s business).  As Holtmakes clear, relying upon the mere existence of records within a computer system renders it virtually impossible to meet the business records exception requirements.

see Beware: Those Business Records Might Not Be Admissible

see also MIchelle Stocker on Business Records Exception

All that said, if a proper and timely objection is not made, those records WILL come in and will be used to prove the truth of the matter asserted even if the matter asserted is false. Note that the above articles are written by lawyers who work for the big law firms that represent the banks.

Tags: business records, hearsay
Posted in Uncategorized |