Get It Admitted Some Other Way

There isn't just one way to admit evidence. Depending on the circumstances, a document that’s inadmissible as a business record still might be admissible as:

• past recollection recorded,
• an admission,
• a declaration against interest,
• a prior inconsistent statement,
• proof of notice,
• or even be used to refresh a witness’s recollection.

Past Recollection Recorded

An otherwise admissible business record can easily get excluded because it was “made with a view toward litigation.” The law figures the document is biased, and that you can’t really cross-examine a business record to expose that bias.

But bias doesn’t keep a witness from testifying and “made with a view toward litigation” doesn’t keep past recollection recorded out of evidence. Just remember that with past recollection recorded you need the actual author of the document on the witness stand to lay the proper foundation.

By the way, the idea that you can’t cross-examine a document ignores the rule that lets you attack the credibility of a hearsay declarant who is not in court with anything that might have been used if he or she had actually been in court and testified. But don’t you forget about it. If the judge admits a business document that you say was made for trial instead of for business, that doesn’t mean the battle is over.

Admission

Even if a document was not actually made in the ordinary course of business, or it isn’t technically relevant to the business for which it was made, it still can be a statement attributable to the business that made it. And if the business is a party to the trial and the statement is inconsistent with the position the busi- ness takes in the case, it’s an admission.

By the way, when you think about it, this common-law definition of an admission reaches the same result as Rule 801(d)(2) of the Federal Rules of Evidence, since it is the party’s statement (directly or indirectly), is relevant to the case, and is offered by the party’s opponent. The common law just put it more simply.

Declaration Against Interest

Now the document has to have been made by a business that is not a party to the case. Not only that, but the real declarant—the source of information in the record—has to be unavailable to testify. And of course, it has to be against the monetary or proprietary interest of the declarant.

You don’t see all those factors falling into place every day—but it can happen.

Prior Inconsistent Statement

When the author of a business record testifies inconsistently with the record, it is admissible as a prior inconsistent statement—whether or not the record qualifies as an exception to the hearsay rule.

But what if the witness is not the author of the document, but some other employee of the company? The business is guilty of being inconsistent, but the witness is not. Then it’s easier to think of the situation as one in which the testimony of the witness “opens the door” to part of an otherwise inadmissible document.

Proof of Notice

Maybe the document wasn’t made soon enough after the events it records, or the information came from outside the business chain—typical reasons for saying that a business record is not admissible to prove the truth of its contents.

But when you are offering the record to prove that the business was on notice of something they put in their own record, then it’s not offered for its truth. It’s classic non-hearsay.

Refresh a Witness’s Recollection

Now it doesn’t matter who the witness is or whether the business is a party to the case. You can use anything to refresh the recollection of any witness. If you can show someone a faded photograph, an old newspaper clipping, or torrid love letter to bring back an elusive recollection, there is certainly nothing wrong with using a business record that doesn’t pass the test for being an exception to the hearsay rule.

In addition to all of these there are lots of other ways to get evidence admitted that started out being improper:

Illustrative Purposes

Real evidence—the thing itself, such as a gun or a knife or a can of tainted vegetables—has to be properly authenticated and shown to have been unchanged to be admissible in evidence. The usual way to do this is with a “chain of custody,” which is really just circumstantial evidence that this is the same gun or can of peas, and nothing has happened to it.

But suppose you’ve got a hole in your chain of custody that can’t be filled with either a witness’s personal knowledge or some set of circumstantial evidence.

The exhibit might still be admissible—not to prove it’s the very knife itself—but to show (if you’ve got a witness who can say so) that it looks exactly like the real thing. Then it’s admissible (accompanied by a limiting instruction) for illustrative purposes.

Insurance

Liability insurance is inadmissible to show that someone acted negligently or wrongfully. It is admissible, however, to show agency, ownership, control, or the bias or prejudice of a witness.

Subsequent Remedial Measures

Like insurance, subsequent remedial measures are not admissible to show culpable conduct. But they are admissible to show ownership, control, or the feasibility of remedial measures—if they are controverted—or to impeach a witness.

Offers to Compromise

Offers to compromise are generally not admissible to prove liability. But they are admissible to show bias or prejudice of a witness or to rebut a claim of undue delay.

Join Another Party

Adding parties to the case turns what they said or did into admissions when they are inconsistent with the position they take in the trial. Of course these admissions are typically not admissible against the other parties, a problem that is “cured” with the miracle of the limiting instruction.

Change the Case

Sue a trucking company for its employee’s reckless driving, and the truck driver’s bad driving record is inadmissible to show he was negligent. But sue the trucking company for entrusting the driver with a dangerous instrumentality—that big truck he drove into the plaintiff—and the driver’s record is admissible to show what the employer knew or should have known about its employee.

Evidence That Refreshed Recollection

Always ask to see whatever was used to refresh a witness’s recollection. If it was used before trial, the court has the discretion to order it be produced for you at trial. If it was used to refresh the witness during the trial, you get to see it as a matter of right. Either way, you are entitled to use it in cross-examining the witness and to introduce whatever part of it is relevant to the case.

It’s always easier if you have your back-up plan for admissibility thought out before you get to court. But you can’t anticipate everything. Besides, just like there’s lots of "tax planning" you can do after the end of the year, there are a lot of opportunities for showing the judge another way to let the evidence in as long as the trial isn’t over.