What is the business records hearsay exception, and does it require the witness to be available?

Think about the purpose of hearsay: the court is trying to keep lies out of the court, and its easy to slip lies in when you are introducing statements from sources that aren't present in court to be scrutinized and attacked by opposing counsel. A common theme for hearsay exceptions is allowing such statements in when there is some underlying reason to make them less likely to be part of a lie or conspiracy to mislead the court. With that in mind, it makes sense that "business records" would be allowed as long as they are part of a regularly conducted activity where the business commonly makes such records.

Why? Because conspiracies are generally pretty rare. So if a business commonly records certain types of data for various circumstances, then pulling a single instance of such records out of that database should be as reliable as the database as a whole. For example, imagine if there were a product liability lawsuit against Amazon.com for some injury caused by selling a HypoHarmer 4000. The injured plaintiff may want to introduce into evidence how many HypoHarmer 4000 units were sold. To do so, they could try to bring in every employee who stocks inventory to testify to the amount of HypoHarmer 4000's they stocked at every warehouse in the world, but that would be tedious and time consuming.

Instead, the plaintiff could introduce Amazon business records of its inventory. These records would be hearsay, because they are statements made outside of court being offered to prove the matter asserted in them (that Amazon had sold a specific number of HypoHarmer 4000's), but it isn't fair to consider these as untrustworthy as something some random person said. Why? Because Amazon sells millions of products, and it is in Amazon's best interests to maintain accurate records of what they sell and how many things they sell. Barring some extremely complex, unlikely conspiracy occurring inside of Amazon's business to single-out the HypoHarmer 4000's records and criminally modify them in a way to obscure the truth, the court can probably trust that the statements in those records are accurate — and so the court will accept them under this rule.

This logic is so reliable, in fact, that if for some reason Amazon was unable to produce any records related to HypoHarmer 4000, the court would allow it as evidence that no such sale ever happened. Think about that. If you're skeptical or paranoid, you may try to argue, "Well, wait, couldn't Amazon have just deleted all its records related to HypoHarmer 4000 because they were being sued?" Not really. "Amazon" isn't a person. It is a business, filled with individual human beings. It would take a concerted effort between at least several people to criminally purge such records from its database to avoid liability (knowing that an opposing party would be seeking out such evidence of wrongful acts). So it is much more likely that the reason those records don't exist is simply because they don't exist because the product was never sold.

Imagine if Bob actually purchased HypoHarmer 4000 from eBay, but due to the brain injury he experienced from its use, he now believes it was purchased from Amazon and sues them. Amazon's business records could show they never carried or sold HypoHarmer 4000, and this hearsay exception would allow that absence to be entered as evidence.

In short, when you're examining evidence on an exam and that evidence happens to be a record of some sort, you should look to see if the reason the record exists is because its was recorded by someone who commonly records such things as a regular business practice. If so, this hearsay exception may apply. In contrast, if this type of record is not usually recorded by the business, then it doesn't count.

For example, imagine if Bob had contacted Amazon support about the HypoHarmer 4000 and complained to the customer support agent about the injury they suffered and the agent was worried about the product that they made a special note of it in a file on their system saying, "Let Jeff Bezos know Bob was harmed by one of our products and we need to investigate." If Bob tried to introduce this note into evidence, the court may not allow it under the business record rule because even though it is technically a "business record" (it was, after all, a record made by a business), it was not a regularly conducted type of record that was made by Amazon. This is just some random note that some random agent jotted down about what Bob told them.