By Connie Reguli

Are DCS records admissible as business records in a court hearing?

I have located five cases in Tennessee directly addressing this question.  

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  TRE 801(c). Such a statement is inadmissible unless it is shown to be admissible as provided by the rules of evidence or otherwise by law. TRE 802. TRE 803(6) covers the hearsay exception for records of regularly conducted activity.  The party proffering the records under TRE 803(6) has the burden to establish (and must lay a foundation) that the records are admissible meeting the five elements of admissibility identified below.  

The following cases in Tennessee discuss the admissibility of DCS case recordings.  

State v. B.F., E2004-00338-COA-R3-PT, (Tenn. App. 12/2/2004) – In this termination of parental rights (TPR) case the case worker was allowed to testify regarding facts in the child’s case file about which she had no personal knowledge but which were documented (or she said were documented) on the case file which was not made an exhibit.  The trial court (Sevier County Judge Stokes) allowed the case worker to testify under the business records exception of Tenn. R. Evid (TRE) 803(6). The appellate Court reversed the trial court stating the TRE 803(6) specifically refers to “records” and indicates that a “record” consists of a memorandum, report, record or data compilation, in any form.  It is clear from this language that this exception pertains solely to the admission of information in the form of tangible documentation. The rule provides for the admission of “records.” It does not provide for the admission of testimony of a witness as to his or her memory of what the record stated. The ground for this exception to the hearsay rule is the fact that regularly kept records typically have a high degree of accuracy.  It is not reasonable to assume that a witness testifying from memory exhibits the high degree of accuracy attributed to regularly kept record. This case does not specifically address any other objections as to the source of information in the records. However, the Court relied on Perlberg v. Brencor Asset Management, Inc. 63 S.W. 3d 390 (Tenn. App. 2001) in which the Court found that a letter in the employment record that referred to a letter from a doctor (but did not contain the doctor’s letter) was inadmissible and not a business record.  Therefore, two questions are considered in this case (1) it is clear that testimony alone from a person who claims to have reviewed the business record is NOT admissible under TRE 803(6); (2) it is also clear that a business record that refers to or incorporates outside information is ALSO NOT a admissible under TRE 803(6) as a business record.  

State Dep’t of Children’s Services v. Stinson, W2006-00749-COA-R3-PT, (Tenn. App. 2006) (McNairy County – Judge Danny Smith) – In this termination of parental rights case Mother objected to the admissibility of the DCS case recordings asserting that the records contained hearsay, however, she did not object to any specific content within the records.  Therefore, the Court ruled that they were admissible under the business records exception to hearsay TRE 803(6). Since the MOther had not objected to any specific entry in the records, the Court did not make an independent assessment of whether the records contained in admissible hearsay. In this case, there was overwhelming evidence of substance abuse and criminal conduct by the parents and the Court stated that even if the records were inadmissible that there was ample evidence to meet the clear and convincing standard for the TPR.  

State Dep’t of Children’s Servs v. C.M.B., E2006-00841-COA-R3-PT, (Tenn. App. 12/13/2006) (Knox County Judge Timothy Irwin) – In this TPR case, the DCS caseworker read into evidence the records created by a previous DCS case management agent.  Mother’s attorney made a faint-hearted objection, saying we would like to have the direct testimony of the witness rather than referring to something I can’t cross-examine. (This is hardly an appropriate objection.)  The Court overruled the objection saying it fell under the hearsay exception. The Judge allowed the reading of the records and asked several questions about where the people were that made those entries. In particular, Mother argued that the trial Court’s conclusion that “cocaine was found within the reach of the children” came ONLY from the hearsay in the DCS records.  On appeal, Mother’s attorney argued that DCS had to demonstrate that the records were made at or near the time of the incidents reported in the records, and that the records were created by someone with the business duty to record or transmit the records during the court of a regularly conducted business activity. The Court found that the records were hearsay and that DCS failed to lay a proper foundation for the admission of these records.  The Court, however, found that it was harmless error (TRAP 36(b)) considering the record as a whole because even striking the complained of evidence, it did not affect the correctness of the judgement. (Note: The problem is that the “fact” recorded in the judgment becomes the law of the case and may be used against the parents in the future.)  

In re Demitrus M.T., E2009-02349-COA–R3-CV (Tenn. App. 3/14/2011) (Claims Commission) – In this wrongful death case, the case recordings were the subject of a motion in limine to exclude inadmissible hearsay by the plaintiff.  The commissioner admitted the case recordings with limited redaction of content that was hearsay within hearsay. The case recordings include an “event date” and “completed date” which is the date that the entry in the record was made.  In this case there was a lapse of time between the event date and the completed date. The DCS employee that was present to testify (not the one that made the record entries) stated that she did not know why there was a delay in the entry of the record and that there is no requirement for the case recording to be made within a certain time. (which is not true)  She testified that sometimes case workers make handwritten notes and then put them in the system later. The case recordings were treated as admissible under TRE 803(6). The commissioner found that the reports were typical of reports regularly prepared by DCS case workers in the fulfillment of their job responsibilities. And that preparing such reports clearly appear to be a proper exercise and implementation of the powers granted DCS under TCA 37-5-106(1) to attain the purpose for which it was created under TCA 37-5-102.  There was no hearsay exception for hearsay within hearsay that was redacted from the records. The Court examined the elements necessary for a record to be admissible under TRE 803(6): (1) The document must be made at or near the time of the event recorded: (2) The person providing the information in the documents must have first hand knowledge of the recorded events or facts; (3) The person providing the information in the document must be under a business duty to record or transmit the information; (4) The business involved must have a regular practice of making such documents; and (5) The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.  Arias v. Duro Standard Prods., 3030 S.W. 3d 256 (Tenn. 2010). The COA examined whether element (1) and (5) had been satisfied. As to element (1) the Court said that the key element is whether the lapse of time between the event and the record of the event interferes with the likely accuracy of the business record. The Court found that the lapse of a few days was acceptable, but the lapse of five weeks was not. The absence of proof that the case worker has some phenomenal memory, or interim notes that captured the events and allowed him to record them later, or some explanation of why the records were accurate despite the lapse of over a month, the State failed to make the required showing that they were made at or near the time of the occurrence.  In this case, the Court also analyzed whether or not the records could be admissible under the public records exception, TRE 803(8) which states, “Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of public offices of agencies setting forth the activities of the office or agency or matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding however, matters observed by police officers and other law enforcement personnel.” The Court said that the same time lapse in the entry of the record would make the records untrustworthy under the public records exception. The Court, however, made an interesting note stating that the fact that the records were not “open to the public” and had been “produced under a protective order” did not disqualify the case recordings from the public records exception.  

In re Melanie T., 352 S.W.3d 687 (Tenn. App. 2011) (Coffee County Judge Vanessa Jackson) – In this dependent and neglect action, the State offered the case recordings made by a case worker who died before the trial into evidence.  The records were admitted into evidence under the hearsay exception of TRE 803(6) – business records. The COA went through the same analysis of the elements and found that the significant delay between the event date and the completed dated rendered the record inadmissible and they lacked trustworthiness.  DCS argued that the court only relied on the records for a timeline and not for the truth of the matter. The COA found that the substantive and material evidence in the records was testified to by other witnesses. Therefore, although is was an error to admit the records, it was harmless error. 

There is no case on point in DCS case recordings to address the hearsay within hearsay, such as statements DCS workers take from third parties, additions to the case recordings made by third-party contractors who are outside of the agency, references in the records to other outside materials (such as medical, dental, or other reports), opinions of the case worker without supporting facts (such as statements that a parent is uncooperative), or conclusions/concerns that are not supported by facts.  

The business records exception clearly requires the recorder to have first hand knowledge of the information contained in the record.  

Additional case law, i.e., other business records opinions may add to this context. 

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Additional case law in Business Records exception to Hearsay.

Business records

Courts have consistently viewed hearsay evidence with suspicion because of concerns about its trustworthiness. Accordingly, hearsay is not admissible in judicial proceedings unless it fits within one of the recognized exceptions to the hearsay rule. This common-law rule is now embodied in Tenn. R. Evid. 802, which states that hearsay is not admissible except as provided by these rules or otherwise by law.

While the Tennessee Rules of Evidence govern proceedings in the state trial courts, they do not necessarily apply with the same force to other nonjudicial proceedings. Tenn. Code Ann. § 4-5-313(1) (1991) provides: The agency shall admit and give probative effect to evidence admissible in a court, and when necessary to ascertain facts not reasonably susceptible to proof under the rules of court, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.This provision applies only to facts not reasonably susceptible to proof under the rules of court and does not permit substituting hearsay for the testimony of otherwise available witnesses.

Tenn. R. Evid. 803(6) embodies the hearsay exception commonly known as the “business records” exception. It replaces the Uniform Business Records as Evidence Act, Tenn. Code Ann. § 24-7-111 (repealed 1991).

Records regularly kept in the regular course of business are viewed as trustworthy and reliable. Thus, the purpose of Tenn. R. Evid. 803(6), like its predecessor, is to enable litigants to introduce and use business records without the expense and inconvenience of calling the numerous witnesses involved in preparation and maintenance of the records.

Tenn. R. Evid. 803(6) does not render all business records admissible. The trial court, or in the case of an administrative hearing the administrative law judge or hearing officer, has the discretion to determine whether a particular record is sufficiently trustworthy to be admissible. In the final analysis, the trustworthiness of a business record depends upon the source of the information contained in the record as well as the time and manner in which the record was prepared.

Documents must satisfy five prerequisites in order to qualify as a record of a regularly conducted activity under Tenn. R. Evid. 803(6). First, the person providing the facts recorded in the document must be acting under a business duty. Second, the person providing the information must have firsthand knowledge of the facts or events. Third, the document must be made at or near the time of the event recorded. Fourth, the document must be one that is regularly made or kept in the normal course of business. Fifth, the document must be introduced through its custodian or some other qualified witness who has knowledge of the manner in which the record was made or prepared.

Business records often contain information provided by others and, accordingly, present multiple hearsay problems. Because Tenn. R. Evid. 803(6) was not intended to shield the contents of business records from the rules of evidence, hearsay statements contained in a business record do not become admissible simply because they have found their way into a business‘s files.

The courts resolve the multiple hearsay problems presented by business records using a two-tier approach. First, they determine whether the primary statement – the record itself – qualifies as a business record or fits within some other exception to the hearsay rule. Second, they determine whether the secondary statement – the one contained in the record – fits within a hearsay exception in its own right. Hearsay statements in business records are admissible only if both the record and the statement contained in the record fit within an exception to the hearsay rule.

Among the due process rights under Tenn. Const. art. I, § 8 and the due process clause of the Fourteenth Amendment to the United States Constitution is the right to be afforded an effective opportunity to defend by confronting any adverse witness.

Rayder v. Grunow, 1993 Tenn. App. LEXIS 261, (Tenn. Ct. App. Apr. 2, 1993)

See Tenn. R. Evid. 803(6) (2011).

Under Tenn. R. Evid. 902(11) (2011), a business record may be authenticated through an accompanying affidavit, with the following requirements: The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Tenn. R. Evid. 803(6) (2011) if accompanied by an affidavit of its custodian or other qualified person certifying that the record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of and a business duty to record or transmit those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

The rationale underlying the business records exception is that records regularly kept in the normal course of business are inherently trustworthy and reliable.

The business records exception is intended to facilitate the use of business records by eliminating the expense and inconvenience of calling numerous witnesses involved in the preparation and maintenance of the records and unduly disrupting the business‘s activities.

An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Tenn. R. Evid. 803(6) (2011).

Documents prepared specifically for the subject litigation are properly excluded because of motivational concerns arising from the fact that they were generated for litigation purposes, as opposed to records generated for business purposes.

The routine of modern affairs, mercantile, financial, and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself.

A compilation of business records, compiled for specific litigation, may be admissible as a summary of voluminous writings under Tenn. R. Evid. 1006, so long as the data included in a compilation otherwise satisfies the business records exception.

Tennessee courts have broadly defined the term “qualified witness” as a witness with personal knowledge of a business‘s record-keeping methods and can explain same to the court, and is not required to have personal knowledge of the facts recorded, nor to have been personally involved in preparing the documents or even know who did.

This appeal concerns the collection of credit card debt. The plaintiff, a subsequent purchaser of the debt, filed this collection action against the appellant debtor. On appeal, the appellant debtor argues, inter alia, that the trial court erred in admitting into evidence various documents from a previous owner of the debt, pursuant to the hearsay exception for business records under Tenn. R. Evid. Rule 803(6). We hold that two of the exhibits were not appropriately admitted into evidence under the business records exception. Without those exhibits, we find that the evidence preponderates against the trial court’s judgment in favorof the creditor, and reverse.LVNV Funding, LLC v. Mastaw, 2012 Tenn. App. LEXIS 282, (Tenn. Ct. App. Apr. 30, 2012)