While the opinion mentions the motivation of the engineer only obliquely, the emphasis on records of routine operations is significant only by virtue of impact on motivation to be accurate. Absence of routineness raises lack of motivation to be accurate. Palmer , F. The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion.
A physician's evaluation report of a personal injury litigant would appear to be in the routine of his business. If the report is offered by the party at whose instance it was made, however, it has been held inadmissible, Yates v.
New York, N. The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctor's report or the accident report were sufficiently routine to justify admissibility. Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity.
Efforts to set a limit are illustrated by Hartzog v. Ware , F. See also Exception [paragraph] 8 , infra , as to the public record aspects of records of this nature.
Some decisions have been satisfied as to motivation of an accident report if made pursuant to statutory duty, United States v. Matthews v. The formulation of specific terms which would assure satisfactory results in all cases is not possible. Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States , 82 U. The rule includes no requirement of this nature.
Wholly acceptable records may involve matters merely observed, e. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34 a of the Rules of Civil Procedure. Exception 7. Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Uniform Rule 63 14 , Comment. While probably not hearsay as defined in Rule , supra , decisions may be found which class the evidence not only as hearsay but also as not within any exception.
In order to set the question at rest in favor of admissibility, it is specifically treated here. Exception 8. Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. See, for example, 28 U. Kay v. The rule makes no distinction between federal and nonfederal offices and agencies. Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.
Wong Wing Foo v. McGrath , F. As to items a and b , further support is found in the reliability factors underlying records of regularly conducted activities generally. See Exception [paragraph] 6 , supra. Perrin , U. Van Hook , F. Kelley , F. Meyer , F. The disagreement among the decisions has been due in part, no doubt, to the variety of situations encountered, as well as to differences in principle.
Sustaining admissibility are such cases as United States v. Dumas , U. Pittsburgh-Des Moines Steel Co. To the opposite effect and denying admissibility are Franklin v. Skelly Oil Co. Dulles , F. Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer.
Various kinds of evaluative reports are admissible under federal statutes: 7 U. While these statutory exceptions to the hearsay rule are left undisturbed, Rule , the willingness of Congress to recognize a substantial measure of admissibility for evaluative reports is a helpful guide. Factors which may be of assistance in passing upon the admissibility of evaluative reports include; 1 the timeliness of the investigation, McCormack, Can the Courts Make Wider Use of Reports of Official Investigations?
Others no doubt could be added. The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception [paragraph] 6 , assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present. In one respect, however, the rule with respect to evaluate reports under item c is very specific; they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case.
Exception 9. Records of vital statistics are commonly the subject of particular statutes making them admissible in evidence. The rule is in principle narrower than Uniform Rule 63 16 which includes reports required of persons performing functions authorized by statute, yet in practical effect the two are substantially the same. Comment Uniform Rule 63 Exception The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception [paragraph] 7 with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions [paragraphs] 8 and 9.
Some harmless duplication no doubt exists with Exception [paragraph] 7. For instances of federal statutes recognizing this method of proof, see 8 U. The rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry, e.
Love , Ill. Congress has recognized certification as evidence of the lack of a record. However, both the business record doctrine and Exception [paragraph] 6 require that the person furnishing the information be one in the business or activity. The result is such decisions as Daily v. Grand Lodge , Ill. In view of the unlikelihood that false information would be furnished on occasions of this kind, the rule contains no requirement that the informant be in the course of the activity.
The principle of proof by certification is recognized as to public officials in Exceptions [paragraphs] 8 and 10 , and with respect to authentication in Rule The present exception is a duplication to the extent that it deals with a certificate by a public official, as in the case of a judge who performs a marriage ceremony.
The area covered by the rule is, however, substantially larger and extends the certification procedure to clergymen and the like who perform marriages and other ceremonies or administer sacraments. Thus certificates of such matters as baptism or confirmation, as well as marriage, are included. In principle they are as acceptable evidence as certificates of public officers.
When the person executing the certificate is not a public official, the self-authenticating character of documents purporting to emanate from public officials, see Rule , is lacking and proof is required that the person was authorized and did make the certificate. The time element, however, may safely be taken as supplied by the certificate, once authority and authenticity are established, particularly in view of the presumption that a document was executed on the date it bears.
Records of family history kept in family Bibles have by long tradition been received in evidence. Opinions in the area also include inscriptions on tombstones, publicly displayed pedigrees, and engravings on rings.
Wigmore, supra. The recording of title documents is a purely statutory development. Under any theory of the admissibility of public records, the records would be receivable as evidence of the contents of the recorded document, else the recording process would be reduced to a nullity. When, however, the record is offered for the further purpose of proving execution and delivery, a problem of lack of first-hand knowledge by the recorder, not present as to contents, is presented.
This problem is solved, seemingly in all jurisdictions, by qualifying for recording only those documents shown by a specified procedure, either acknowledgement or a form of probate, to have been executed and delivered. Thus what may appear in the rule, at first glance, as endowing the record with an effect independently of local law and inviting difficulties of an Erie nature under Cities Service Oil Co. Dunlap , U. Dispositive documents often contain recitals of fact.
Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document.
The age of the document is of no significance, though in practical application the document will most often be an ancient one.
See Uniform Rule 63 29 , Comment. Authenticating a document as ancient, essentially in the pattern of the common law, as provided in Rule b 8 , leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificates, in addition to title documents, citing numerous decisions.
Since most of these items are significant evidentially only insofar as they are assertive, their admission in evidence must be as a hearsay exception. But see 5 id. The former position is believed to be the correct one in reason and authority. See Dallas County v. Commercial Union Assurance Co. Morgan, Basic Problems of Evidence , but see id. Ample authority at common law supported the admission in evidence of items falling in this category.
While Wigmore's text is narrowly oriented to lists, etc. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.
Hardy , Ala. Preferred Risk Mut. The foundation of the minority view is that the hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake. Sound as this position may be with respect to trustworthiness, there is, nevertheless, an additional difficulty in the likelihood that the treatise will be misunderstood and misapplied without expert assistance and supervision.
This difficulty is recognized in the cases demonstrating unwillingness to sustain findings relative to disability on the basis of judicially noticed medical texts. Ross v. Gardner , F. Ribicoff , F. Celebrezze , F. The rule avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if declared. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy.
The relevance of the use of treatises on cross-examination is evident. This use of treatises has been the subject of varied views. The most restrictive position is that the witness must have stated expressly on direct his reliance upon the treatise.
A slightly more liberal approach still insists upon reliance but allows it to be developed on cross-examination. Further relaxation dispenses with reliance but requires recognition as an authority by the witness, developable on cross-examination. The greatest liberality is found in decisions allowing use of the treatise on cross-examination when its status as an authority is established by any means. The exception is hinged upon this last position, which is that of the Supreme Court, Reilly v.
Pinkus , U. Petersburg v. Ferguson , So. Charleston Memorial Community Hospital , 33 Ill. Rhodes Co. In Reilly v. The process works equally well in reverse and furnishes the basis of the rule. The rule does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness. Dabroe v. Moreover, the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise.
The parallel to the treatment of prior inconsistent statements will be apparent. Name No Content These fields are required. Email Email id Click to edit. Email No Content This field is required.
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Rate this Post. Contact Us for a Consultation Schedule your free consultation. This field is for validation purposes and should be left unchanged. This particular witness had been allowed to be treated as hostile and when the jury were recalled to court, the proper procedure for the prosecution was to have put to the witness that she had on another occasion made a statement which differed materially from or contradicted the one she was making in the witness box.
If she were to deny that, then the proper procedure would have been to have her stand down from the box and to prove in fact that she did in fact make a statement by putting into the box the person who took the statement, proving it in the ordinary way without revealing the contents of the statement at that stage. The earlier witness should then have been put back in the box and the statement put to her for identification, and then her attention should have been directed to the passage in which the alleged contradiction or material variation appears.
If she had agreed that there was such a contradiction or material variation, that should have been the end of the matter in so far as the question of impunging her credibility was concerned because there would then have been before the jury an admission from the witness to the effect that she had made contrary statements on the same matter. If she persisted in denying the contradiction then the statement having already been proved would have gone in as evidence of the fact that the witness had made a contrary statement.
The law relating to the use of prior inconsistent statements of a witness in cross-examination is contained in Sections 3, 4 and 5 of the Criminal Procedure Act Denman's Act , which notwithstanding its title, applies to civil as well as criminal proceedings. They provide as follows A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such.
See also The People v Cradden [] I. Cross-examination with reference to a prior inconsistent statement of a witness may take a number of forms. The cross-examiner may merely show the witness his previous statement in writing without reading it to the court and ask him if in the light of it he adheres to his testimony.
In that case the statement has not been put in evidence nor is the other side entitled to see it or to have it put in evidence. However, the judge may, under Section 5 of the Criminal Procedure Act , call for the document and make such use of it, including putting it in evidence, as he thinks fit.
Ford 2 Den at , E. The cross-examiner may go no further than asking if the witness has said the contrary to that to which he testifies on any occasion. If the witness does not admit it, the cross-examiner may drop the matter. If the witness agrees that he made an inconsistent statement it is not permissible to put it in evidence. The latter is then relevant only to the credibility of the witness and is not evidence of the facts asserted.
As regards the right of the party calling a witness to put in evidence documents used by the other party in the cross-examination of that witness, there seems to be little or no recent reported authority in this country, or indeed, in England.
It appears to have come up more frequently in Australia. The New South Wales Law Reform Commission in their Working Paper on The Course of the Trial argued that such a right exists provided that such cross-examination went beyond calling the witness's attention to his previous statement without reading it out or proving it.
Cradden [] I. Much of the point of the rules relating to the proof of prior inconsistent statements disappears if the cut-of-court statements of a witness are made generally admissible as evidence of the facts asserted. There is then no reason in principle why any party should not be free to tender such a statement in evidence. Sections 3 and 4 of the Criminal Procedure Act could be repealed as redundant as their purpose is to make prior inconsistent statements admissible in certain circumstances and subject to certain conditions.
Section 5 might be retained in a modified form to allow for cross-examination on a previous statement without showing it to the witness beforehand and to protect the right of a witness to explain any discrepancy between his testimony and a previous statement tendered in evidence. The difficult point is how far the side calling a witness should be entitled to see and put in evidence previous statements of that witness put to him but not read out in the course of cross-examination.
It may be felt that a cross-examiner should be entitled to show a witness an out-of-court statement, or ask him about it in general terms while not revealing its contents, for the purpose of getting an admission of inconsistency or a different answer in court without having the whole document containing the statement which his opponent may not have tendered in evidence.
But the complications and distinctions involved in such rules would be endless. In principle, all previous statements of witnesses, being admissible in evidence, should be available to every side in litigation. If one side has evidence of such a statement and uses it in cross-examination it should be made available to the other side who should then be free to decide whether to put it in evidence. But it should remain permissible to cross-examine a witness about a previous statement in general terms before drawing his attention to its exact contents or any document containing it.
Where a previous statement has been used in cross-examination of a witness, that witness should be entitled to comment thereupon and explain any discrepancy between it and his testimony in court and evidence would then be admissible without notice of other previous statements explaining or qualifying any inconsistency. An out-of-court statement of a witness should be admissible as evidence of the facts therein. However, unless the court gives leave no such statement should be given in evidence before the conclusion of the examination-in-chief of the witness who made it.
Advance notice should be given of an out-of-court statement of a witness as for out-of-court statements of persons who do not testify.
A witness should be entitled to refresh his memory either before or at the time he testifies, by referring to any previous statement made either by him or by another. Advance notice of such statement should be served on the other party, who should then be at liberty to tender the statement as evidence of the facts therein.
Cross-examination should not be permitted from parts of a document used to refresh memory other than those actually used to refresh memory unless the statements referred to in cross-examination are admissible in evidence in their own right. Prior inconsistent statements of a witness should be admissible as evidence of the facts therein without any requirement that advance notice should be given to the other party.
Sections 3, 4 and 5 of the Criminal Procedure Act should be repealed and as the following provisions applied to the cross-examination of a witness on his previous statement:. Any previous statement of a witness used in cross-examination should be made available to the other party to the litigation. Notwithstanding a , it should remain permissible to cross-examine a witness about a previous statement made by him before his attention is drawn to its exact contents or any document containing it.
Where a previous statement of a witness is used in his cross-examination, he should be entitled to comment thereon and explain any discrepancy between it and his testimony in court; and evidence should then be. A party producing a witness should not be permitted to give any evidence adverse to that witness's credibility except evidence of a previous inconsistent statement made by that witness. It was under this rule that entries in marriage registers were admitted in Ireland in cases where registers were not kept pursuant to any statute.
Delivering judgment in Malone v. L'Estrange 2 Ir. More recently notes made by solicitors of negotiations with third parties on behalf of a client and of instructions taken from a client have been held admissible as being necessary to the discharge of the solicitor's duties to the client.
Followed in Dillon v. Tobin 12 I. See also Farrell v. Maguire 3 Ir. Ring 25 L. Wheatley 28 L. Clery [] I. Harris v. Lambert [] I. Erskine No. See, however, Mercer and Smyth v. Mercer [] 2 I. However, the limitations of this rule are such as to exclude records which may have probative value. In Miller v. This was, as was stated in a dissenting judgment of O'Brien J.
Statements relating to the legitimacy of an infant in a baptismal register have been excluded because there was no duty to record that matter and it was not within the personal knowledge of the writer. Ryan v. Massey v. Allen 13 Ch. Dawson 22 T. In another case about the same time it was laid down that the entry must relate not to something ascertained by the person making the entry but to something done by or to him. In that case the cars alleged to have been stolen had log books of wrecked cars purchased by the accused but the prosecution called an officer in charge of the records of the manufacturers of the stolen cars to prove that the numbers of those cars coincided with those on the cylinder blocks in the cars sold by the accused.
The trial judge admitted the evidence of the officer in charge of records and the schedule of microfilms produced by him, the cards filled in by the workman having been destroyed after being copied. Polini v. Gray 12 Ch. However, in other Common Law jurisdictions a less restrictive approach to the admissibility of records has prevailed than in England. In Potts v. Miller 64 C. Venner [] S. Having regard to the lack of recent Irish authority in this area our courts might well follow this Canadian decision rather than the House of Lords decision in the Myers case.
The Criminal Evidence Act was passed to reverse the effect of the decision in the Myers case. Records may be admissible under other headings.
First, as has been noted, a witness may refresh his memory by referring to a note made or verified by him at the time of the event noted provided that, he had personal knowledge of the facts recorded. As the note may be inspected and put in evidence by the other side, the record is effectively available to the court. But this device is not effective where, as frequently occurs in modern record-keeping systems, the person who supplied the facts recorded cannot be identified or where the record was not verified by him.
Secondly, records may be admissible as admissions if they are adverse to the case of the party making them. In Australia, in a case against a hospital for negligence arising out of medical treatment, entries by servants in the records of the hospital sued were admitted as evidence of the facts recorded on the basis that they were adopted by their employer. Thirdly, records may be admissible where they rank as public documents.
Warner v. The Womens Hospital [] V. Swan v. Miller, Son and Torrance [] 1 I. The increasing size and complexity of modern administration has rendered obsolete the old archetype of records being made in writing by identifiable persons with personal knowledge of the facts recorded. Frequently, the person making the record does so on information supplied and has no personal knowledge of the content or any recollection of the source of the facts recorded.
The records kept may not reproduce the information actually supplied by individuals but only contain facts derived from this information or facts recorded automatically by machines. This is especially true in the case of computers which are now used widely both in business and administration. Reliability in such cases depends not only on the veracity of those supplying the information but also on the thoroughness of checks and the efficiency of the machines producing the records.
Legal rules must be framed to take account of these technological developments. If, as has been proposed supra , out-of-court statements are made admissible as evidence of the facts asserted subject to i the maker of the statement or the person from whom the information was derived being called to testify, if he is available, and ii a requirement of notice, business records would become generally admissible, albeit subject to procedural requirements.
The question arises whether any special provision need be made for such records different from those applying to out-of-court statements generally. In the case of records it is likely that those supplying or recording information will have done so as a matter of routine and will have no present knowledge or recollection of the matters recorded; and it may be questioned whether it is appropriate to insist on their being called as the makers of the statement where they are identifiable and available.
Records are often compiled from information supplied by a number of people and the expense and trouble of calling all of them may be disproportionate.
Moreover, the real guarantee of their veracity lies in the reliability and checks of the system according to which they are compiled; and it is likely to be more helpful to examine a person who can testify to this than the people who supplied or recorded particular items of information of which they cannot reasonably be expected to have any present recollection.
In the vast majority of cases the trouble and expense of identifying and calling the latter as witnesses to testify to their lack of recollection or proving that they are not identifiable or otherwise unavailable, would not be justified by the likely value of their testimony. It may be instructive to consider how this problem has been tackled in the legislation of other Common Law jurisdictions.
In criminal cases, admissibility is conditional upon the unavailability. In civil cases, the scheme of the legislation is more complex. Section 4 1 of the Civil Evidence Act provides:. The Criminal Evidence Act , section 1 1 , provides:. Under the rules of court, notice must be given to the other side before a statement contained in a record may be received in evidence. If they attend as requested, the statement is admissible but, in the case of the person who originally supplied the information from which the record containing the statement was compiled, the statement cannot be given in evidence without the leave of the court and then generally only after the person who supplied the information has testified.
Civil Evidence Act , section 4 2. The only conditions attached to the admissibility of such a statement to be found in the Act itself are that the computer is in regular use in the business for the receipt of information of the kind supplied and has been operating properly.
The Civil Evidence Act section 5 1 and 2 provide:. In any civil proceedings a statement contained in a document produced by a computer shall, subject to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if it is shown that the conditions mentioned in subsection 2 below are satisfied in relation to the statement and computer in question.
As with other hearsay evidence, even where notice has not been given or where a person whose attendance is requested, being available, fails to testify, the court has a residual discretion to admit a statement if it thinks it just to do so. One consequence of the English provisions relating to statements produced by computers is that such a statement may be given in evidence without calling as a witness the person who supplied the information although he is available and has a recollection of the subject-matter of the information.
It was this preferential treatment over records produced other than by computer that caused disquiet to the New South Wales Law Reform Commission, whose Report on Evidence Business Records published in July is the most thorough official study yet published on the law relating to business records.
It would have the effect of making a document admissible if it was produced by a computer, but inadmissible if it was produced by other reliable means. There is, we think, no justification for that result. We were led, therefore, to consider the admissibility of statements in business records, whether the records are kept or produced by computers or by other reliable means.
They recommended that statements in such records should be admissible in civil proceedings notwithstanding the rule against hearsay without it being obligatory to call the person who supplied the information originally or any other person involved in the making of the statement. They justified their position thus:. He will be called either because oral testimony will carry the most conviction in the mind of the tribunal of fact, or to avoid damaging comment on the failure to call a relevant witness, or to avoid any risk that the statement may be rejected or excluded Sometimes, of course, a party might for tactical reasons decide not to call an available witness but seek to tender in evidence and rely on a statement in a business record.
In order to prove that the statement was admissible, it would, under the legislation we propose, be necessary to lead evidence to prove that the conditions of admissibility have been fulfilled.
However, there may be circumstances of this or some other kind in which it would be unfair to admit a statement. Accordingly, we recommend that a court have power, in the exercise of a discretion, to reject. Roughly speaking these conditions were that the statement was made or derived from statements made in the course of or for the purpose of the business or by a person engaged in the business who had personal knowledge of the fact or was an expert qualified to express an opinion or reproduced or derived from information supplied by recording or measuring machines.
This safeguard should, we think, make a party hesitate not to call available oral evidence but rely solely on a business record when such oral evidence would be, or might be thought to be, likely to assist the court.
It is submitted that the Commission may have been over-sanguine in their view of the efficacy of cross-examination to ensureing that a party will always call the person or persons who supplied information on which a record is based, whenever that person has any relevant contribution to make. If it is accepted as desirable that a witness with personal knowledge of a disputed fact should testify, if available, the most effective way to achieve this is not to admit statements in business records unless those who supplied the information testify to those facts from their personal knowledge or recollection if they are in a position to do so.
The New South Wales Law Reform Commission itself was not prepared to make business records admissible in criminal proceedings unless:. This more rigorous standard of admissibility in criminal cases was justified by reference to certain special features of criminal proceedings, viz.
It is considered that it is equally desirable that the best possible evidence should be available in civil proceedings. Indeed, it is submitted that the New South Wales Law Reform Commission's proposal for criminal cases which was duly enacted into the Evidence Act by the Evidence Amendment Act may even be too lax in admitting records without the person supplying information being called, merely because undue delay and expense would be caused by calling him.
If there is a witness involved in the making of the record who had personal knowledge and has a recollection of the facts therein it is clearly appropriate that he should testify.
But if there is no such witness, then it should be permissible to give in evidence a statement in a record provided that testimony is offered supporting its reliability. It is considered that such testimony should be made available in advance to the other side so that they can make their own investigations.
And provision might also be made along the lines of section 30 9 of the Canada Evidence Act which provides It is considered, therefore, that an out-of-court statement contained in a business or administrative record should be admissible not only where the persons who supplied the information testify or are unavailable but also where they have not any recollection of the facts supplied or recorded. It should be permissible to establish such lack of recollection by evidence on affidavit or to infer it from the circumstances of the case.
In cases where a record is derived from information supplied from several sources, the unavailability or lack of recollection of some of those contributing to the record may make it futile to attempt to establish the truth of its contents by direct oral testimony. Then the record should be admissible without requiring such testimony.
Where a fact is sought to be proved by reference to a statement contained in a record or produced from a record ordinary principles of proof would seem to require that evidence should be tendered supporting the reliability of the system of compiling the record in question. It is. Section 5 4 of the English Civil Evidence Act , which makes provision for the admission of statements produced by computer requires that a person occupying a responsible position in relation to the relevant activities must tender evidence by certificate as to the efficiency of the computer system and, under the Rules of Court, must be made available for cross-examination at the request of the opposing party.
In their Report on Evidence published in July , the English Criminal Law Revision Committee suggested that, unlike other out-of-court statements, advance notice should not be required of statements in records tendered in evidence But in order that a statement contained in a record should be admissible it will be necessary, as mentioned above, that the record should have been compiled by a person acting under a duty or otherwise in a responsible position as mentioned, and this fact seems to us to make the likelihood that the statement is reliable great enough to justify dispensing with the requirement to give notice of intention to give the statement in evidence.
The Committee might also have relied on the fact that under various statutory provisions, statements in records, such as birth, marriage and death registers and in bankers' books may be tendered in evidence at present without having to give notice. Despite this, it is considered that the Committee's recommendation should not be followed. Business records, however defined, are not of such universal reliability that the other party should be denied the opportunity of investigating them in advance of the trial.
In civil cases in England, advance notice is generally required of statements in records sought to be given in evidence under the Civil Evidence Act In the lower courts it may be better to leave any question of prejudice arising from the tender of business records to be dealt with by adjournment rather than to require notice to be given in all cases.
It is considered that the requirement of notice is of particular importance in the case of records, as an opposing party should be given an adequate opportunity to investigate the reliability of the system on which the court is asked to rely.
Notice should also be given of the evidence to be tendered in support of the reliability of a system of records so that this too may be investigated.
It is considered that any discretion to waive notice should be exercised only in cases where the other party is not prejudiced by the lack of notice and where it is not the fault of the party tendering the record.
As in the case of out-of-court statements generally, such a discretion, exercisable within clearly defined limits, would not open the way to a general disregard for the indispensable requirement of notice. There is an increasing tendency for statements in business records to be based wholly or partly on information collected and supplied by automatic measuring and recording devices.
It is doubtful if such a provision is necessary to make the evidence in question admissible. If a mechanical device records information without the intervention of any person, the resulting statement is not excluded by the rule against hearsay, not being derived from a statement made by a person not testifying.
It would be admissible on the same basis as tape-recordings and cinematograph film strips have been held admissible in decided cases. This can be achieved by making its admissibility subject to the same requirement of notice as out-of-court statements. As in the case of other records, evidence supporting its reliability should be made available to the other party in advance of the trial.
It will be necessary to enact consequential provisions to facilitate the reception of evidence of records not kept in words or figures, by allowing an explanation to be tendered in evidence. Senat , R. Sin 52 Cr. Section 39 5 of the draft Evidence Act proposed in the Ontario Law Reform Commission Report on the Law of Evidence goes further in providing for explanations of computer records produced by human agency rather than the use of a computer.
It provides:. Finally, for the removal of uncertainty it would be advisable to provide for the situation where it is sought to prove that an event did not happen with reference to records covering all events of a given description.
Accordingly it is considered that if the arguments put forward in previous chapters in favour of the admissibility of out-of-court statements are accepted, the following special provisions should be enacted in respect of statements contained in or produced by business or administrative records.
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