708.7Business Records [Rule 803(6)]

The Basic Rule

Rule 803(6) – Records of Regularly Conducted Activity

G.S. 8C-803(6) (re-formatted for clarity).

Types of Records Covered by the Rule

Any Organization or Business

Although Rule 803(6) is based on “the traditional business records exception,” the current rule is an “expansion” of the traditional doctrine because the rule also “include[s] the records of institutions and associations like schools, churches and hospitals.” G.S. 8C-803(6), Official Commentary. The term “business” applies broadly to organizations, associations, professions, and institutions “of every kind,” whether conducted for profit or not. G.S. 8C-803(6). See, e.g., State v. Sneed, 210 N.C. App. 622 (2011) (exception applied to NCIC database records for stolen firearm); State v. Forte, 360 N.C. 427 (2006) (exception applied to SBI chain of custody documents); State v. Scott, 343 N.C. 313 (1996) (exception applied to records of domestic violence shelter).

The exception applies to the “records” of the organization, which includes any “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses” that satisfies the foundational requirements discussed below. See, e.g., State v. Waycaster, 260 N.C. App. 684 (2018), rev. improvidently allowed, 375 N.C. 232 (2020) (GPS tracking records collected by probation office were properly admitted as business records); State v. Hicks, 243 N.C. App. 628 (2015) (NPLEX database records of pseudoephedrine purchases covered by the exception); State v. Hewson, 182 N.C. App. 196 (2007) (911 call and response “event report” covered by the exception); State v. Smith, 157 N.C. App. 493 (2003) (“Hospital records are admissible under the business records exception to the hearsay rule with the proper foundation.”); State v. Frierson, 153 N.C. App. 242 (2002) (financial records including deposit slips, validation reports, and account statements covered by the exception).

Paper or Digital Records

Many business records are now created, stored, or produced for court in a digital format, such as call detail records saved onto a USB drive or medical records copied onto a CD. Rule 803(6) applies to records “in any form,” including a “data compilation.” G.S. 8C- 803(6). Therefore, the rule also applies to electronic or computer records, as long as a proper foundation is laid. See G.S. 8C-803(6), Official Commentary ("The rule is in accord with North Carolina practice in that it includes computer storage.").

The North Carolina Supreme Court first applied the business records exception to printouts of “computerized business records” in 1973. State v. Springer, 283 N.C. 627 (1973). The court held that the computer records were admissible in the same manner as traditional paper records, as long as the foundation offered for the records satisfied comparable requirements to those discussed below: (i) made in the regular course of business; (ii) at or near the time of the transaction;  and (iii) provided by a witness familiar with the records and methods under which they were made, so as to satisfy the court that the methods, sources, and time of preparation of the records render them trustworthy. Id.

More recent decisions have continued to follow this standard for admissibility. See, e.g., State v. Jackson, 229 N.C. App. 644 (2013) ("Exhibit 16 was properly admitted as a business record if the [GPS] tracking data was recorded in the regular course of business near the time of the incident and a proper foundation is laid"); State v. Crawley, 217 N.C. App. 509 (2011) (compact disc that contained "a response letter from Sprint, a screen print of Sprint's database, a directory of cell sites, and call detail records" was properly admitted as an electronic business record); see also State v. Gardner, 237 N.C. App. 496 (2014) (“electronic business records need not be authenticated by the person who made them,” as long as a proper foundation is laid).

Requirements for Admissibility

Made At or Near the Time

First, the record must have been made “at or near the time” of the occurrence that it documents. G.S. 8C-803(6). If the record itself indicates when it was created (e.g., a time-stamp on a call log, or the date printed on a sales receipt), the record is self-authenticating regarding the time of its creation. See, e.g., State v. Frierson, 153 N.C. App. 242 (2002) (“the records in question have dates listed showing that the records were created at or near the time of the transactions in question and therefore were self-authenticating as to the time at which they were made”); State v. Rupe, 109 N.C. App. 601 (1993) (“if the records themselves show that they were made at or near the time of the transaction in question, the authenticating witness need not testify from personal knowledge that they were made at that time”); State v. Wilson, 313 N.C. 516 (1985) (“The records showed daily entries for September 14, 15 and 16, and were therefore self-authenticating as to the time at which they were made.”).

Alternatively, if the records are not dated, the time element can be established through witness testimony. See, e.g., State v. Tyler, 346 N.C. 187 (1997) (foundation adequately laid where nurse testified that medical records were “kept contemporaneously with” the patient’s care). 

By a Person with Knowledge

Second, the record must have been created by a person with knowledge of the occurrence, or be based upon information transmitted by such a person. G.S. 8C-803(6). See, e.g., State v. Scott, 343 N.C. 313 (1996) (employee at domestic violence shelter was qualified to authenticate intake form filled out by victim at employee’s direction).

Although the record must be created by (or based on information from) a person with knowledge, this does not mean that only a person with knowledge of the underlying event can authenticate the resulting record. See State v. Crawley, 217 N.C. App. 509 (2011) (testimony from a records custodian who did not personally send the records to the police but testified that "he believed them to be accurate and that he was familiar with each type of document" provided "sufficient evidence to show that the records were, as the State claimed, records from Sprint/Nextel, and any question as to the accuracy or reliability of such records is a jury question"); State v. Wilson, 313 N.C. 516 (1985) (“There is no requirement that the records be authenticated by the person who made them”), citing State v. Carr, 21 N.C. App. 470 (1974); State v. Springer, 283 N.C. 627 (1973) (“the business records exception recognizes [t]he impossibility of producing in court all the persons who observed, reported and recorded each individual transaction....”) (internal citations omitted). For more information, see the discussion below regarding laying foundation for the record.

Regular Course of Business

Third, the records must have been “kept in the course of a regularly conducted business activity” for that organization, and it must be the “regular practice” of the organization to create such records. G.S. 8C-803(6). See, e.g., State v. Mobley, 206 N.C. App. 285 (2010) (audio recording of jail call by defendant admitted as business record, where state’s witness testified that “inmates' calls are recorded in the normal course of business and kept at the Mecklenburg County Jail according to the inmates' PID number”); State v. Wise, 178 N.C. App. 154 (2006) (“sex offender registration worksheet” prepared by sheriff’s office and filled out by defendant was created in normal course of business for the department, and admissible as a business record); State v. Ligon, 332 N.C. 224 (1992) (sales ticket for purchase of ammunition was created in normal course of business).

Methods of Laying Foundation

The requirements for admissibility described above can be satisfied in four different ways. See G.S. 8C-803(6) (describing foundation required to admit business records, “all as shown by” one of the following four methods).

Records Custodian

The authentication and foundation requirements can be satisfied by testimony from the “custodian” of records for the organization. G.S. 8C-803(6). The records custodian is simply the person who is responsible for keeping and maintaining the records, or the person who has actual custody of them. As noted above, there is no requirement that the custodian be involved in the creation of the original records. See, e.g., State v. Hewson, 182 N.C. App. 196 (2007) (“Chief James testified that the pass on information form was kept in the ordinary course of business and that he was the custodian of the record”); State v. Wise, 178 N.C. App. 154 (2006) (sheriff’s deputy testified that he was records custodian for defendant's file as it pertained to registration requirements and provided testimony establishing that documents were records of regularly conducted business activity); State v. Woods, 126 N.C. App. 581 (1997) (records custodian laid proper foundation for medical records, and the rule “does not require that this foundation be established by a ‘medical expert’ as sought by defendant”); State v. Marshall, 94 N.C. App. 20 (1989) (officer “was qualified to testify on this matter because while she was not the records custodian for the entire pretrial release office, she had custody and control over defendant's file”). See also Robert P. Mosteller et al, North Carolina Evidentiary Foundations 5-13 (2^nd ed. 2009) (authentication of business records is simple and straightforward, and “authenticating witness need only be familiar with the business’s filing system, have taken the record from the right file, and recognize the exhibit as having come from the file.”).

Other Qualified Witness

Alternatively, the foundational information may be provided by testimony from another “qualified witness” who is not the official custodian of the records, but is sufficiently “familiar with them and the system under which they are made.” State v. Wilson, 313 N.C. 516 (1985). See, e.g., State v. Allen, 258 N.C. App. 285 (2018) (loss prevention associate was qualified to authenticate trespass notice as a business record, based on familiarity with store’s process and forms, even though associate did not personally execute the form in this case); State v. Jackson, 229 N.C. App. 644 (2013) (officer’s training and experience using GPS tracking system in the normal course of his duties “established a sufficient foundation of trustworthiness for the tracking evidence to be admitted as a business record”); State v. Sneed, 210 N.C. App. 622 (2011) (officer who used NCIC database in his regular course of business was sufficiently qualified to lay foundation for admissibility of records); State v. Ligon, 332 N.C. 224 (1992) (authenticity of sales ticket established by testimony of person who prepared the ticket). Accord, State v. Tyler, 346 N.C. 187 (1997) (nurse familiar with hospital records); State v. Rupe, 109 N.C. App. 601 (1993) (salesman who created 6 out of the 7 records); State v. Mebane, 106 N.C. App. 516 (1992) (director familiar with company time cards); State v. Holden, 321 N.C. 125 (1987) (shop owner qualified to authenticate firearm purchase paperwork).

Affidavit

Pursuant to an amendment in 2015, the foundation for any records offered under Rule 803(6) may be established “by affidavit…made by the custodian or witness,” attesting to each of the required foundational elements discussed above. G.S. 8C-803(6). Authentication by affidavit is limited to records of nonparties, and the proponent of the records must give “advance notice” of his or intent to offer the evidence pursuant to an affidavit. G.S. 8C-803(6). See generally In re S.D.J., 192 N.C. App. 478 (2008) (decided before the amendment to Rule 803(6), but allowing use of an affidavit to authenticate records); In re S.W., 175 N.C. App. 719 (2006) (similar ruling). See also State v. Isaac, 205 N.C. App. 468 (2010) (unpublished) (upholding exclusion of records because no foundation was offered, but stating that an affidavit could have been used for that purpose).

Before the 2015 amendment to Rule 803(6), the only business records that could be introduced through an affidavit were hospital records produced in accordance with special procedures found in G.S. 8-44.1 and N.C.R. Civ. P. 45(c)(2). See, e.g., State v. Woods, 126 N.C. App. 581 (1997). For an explanation of that process, see Shea Denning, “Special Rules for the Admission of Hospital Medical Records,” N.C. Criminal Law Blog, June 20, 2013.

Under the amended version of the rule, any type of business record can now be authenticated through the use of an affidavit. For more information about this change, see Jonathan Holbrook, “Rule 803(6): Please Hold for the Next Available Representative,” N.C. Criminal Law Blog, March 13, 2018.

Document Under Seal

The 2015 amendment to Rule 803(6) also added a provision that allows the foundation for records offered under this rule to be satisfied by a “document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness.” G.S. 8C-803(6). There are no North Carolina appellate cases interpreting this provision yet, but it appears to authorize the introduction, as business records, of documents bearing an official seal of a state department or agency as long as the records were produced by the records custodian or another qualified witness. See generally G.S. 8C-902(1) (“document bearing a seal…of any state…or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution” is self-authenticating). For more information, see the related Evidence on Self-Authentication [Rule 902].

As a practical matter, however, any documents made under seal in accordance with Rule 902 that satisfy this criteria would likely be admissible under another rule of evidence anyway. See, e.g., State v. McCoy, 234 N.C. App. 268 (2014) (affidavit of indigency sworn to by defendant was a self-authenticating document under Rule 902 and  was admissible for purpose of comparing defendant’s signature); State v. Watson, 179 N.C. App. 228 (2006) (certified prison records from New York were properly admitted into evidence as public records under Rules 803(8) and 902: “Extrinsic evidence of authenticity is not a condition precedent for the admissibility of documents bearing seal and certified copies of public records.”).

Limitations on Admissibility

Even if all the above requirements for admissibility under Rule 803(6) are met, there are two additional circumstances that may cause the court to exclude (or redact) the records.

Lack of Trustworthiness

First, the court may decline to allow records into evidence under Rule 803(6) if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” G.S. 8C-803(6); see State v. Miller, 80 N.C. App. 425 (1986) (“Trustworthiness is the foundation of the business records exception”).

This issue may arise, for example, when purported “business records” are created with the express intent of using them at trial, or when circumstantial evidence indicates a lack of reliability in either: (i) the underlying information provided; or (ii) the system used to record that information. See, e.g., State v. Galloway, 145 N.C. App. 555 (2001) (no error in refusing to admit doctor’s notes as business records when he couldn’t remember source of information, and stated the information was probably drawn from various records and statements of defendant’s mother); State v. Brewington, 80 N.C. App. 42 (1986) (error to admit phone records showing originating phone numbers that placed collect calls to the target phone, because: (i) callers entered the originating numbers manually; (ii) callers could choose any number to enter; and (iii) the accuracy of the numbers entered was not verified by the phone company). But see State v. Melton, 175 N.C. App. 733 (2006) (lab test results were admissible as business records, even though test was performed after defendant’s arrest, where there was no evidence that lab had any motive to distort results or even knew about prosecution).

Double Hearsay

Second, even if the business record itself is admissible under Rule 803(6), there may be statements contained within that record that represent a second level of hearsay. This is known as “double hearsay,” and the hearsay statements within the record may only be admitted into evidence if there is an independent basis for their admissibility (e.g., admission of a party opponent, or statement for the purpose of medical diagnosis). See, e.g., State v. Sisk, 123 N.C. App. 361 (1996) (“Statements made by a person other than the person(s) compiling the business record which are recorded within the record are double hearsay, or compound hearsay, and may only be admitted if an exception to the hearsay rule is found for that statement”); State v. Reeder, 105 N.C. App. 343 (1992) (“assuming arguendo that the medical report in question was properly authenticated as a medical record kept in the course of a regularly conducted business activity and admissible as a business record,” a child’s statement contained in the records that was made only for investigative purposes and not for medical diagnosis was “clearly inadmissible within the meaning of the business records exception to the hearsay rule because it is an entry which amounts to hearsay on hearsay.”) (internal quotation omitted).

For more information, see the related Evidence entry on Double Hearsay [Rule 805].