Are Business Records "Hearsay Testimony?

There are a number of exceptions to the hearsay rule.  Of particular relevance in the context of some unemployment insurance hearings is the "business record" exception.

Section 908.03(6) of the Wisconsin Statutes provides that the following is not excluded by the hearsay rule:

RECORDS OF REGULARLY CONDUCTED ACTIVITY.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the course of information or other circumstances indicate lack of trustworthiness.

Note that the exception requires that "the custodian or other qualified witness" be present to identify the documents in question, and testify from them.

It is also important to remember that whether a report is admissible under this exception depends on whether there are additional levels of hearsay within the report.   If there are, all levels of hearsay must qualify under an exception to the hearsay rule.

For instance, an employer may want to establish that the employee’s supervisor gave him a verbal warning on a given date.  In order to do so, the employer may want to offer a computer printout of entries made by the employee’s supervisor as part of a journal she regularly keeps.  The printout may be sufficient to establish that some contact was made between the supervisor and the employee on that date, if the computer records were maintained in the course of a regularly conducted activity.  However, the actual content of a conversation documented on the printout cannot be established without resorting to a second level of hearsay.  In other words, the employer cannot prove what the supervisor said to the employee without the supervisor’s firsthand testimony.

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