Accident Reports

Action by P Plumbing & Heating Company for property damages to P's vehicle, driven by its employee E, allegedly sustained in an accident with a D Bus Company bus driven by D's employee, F. At trial, P offers a memo made by E one hour after the accident and filed at P's office. The memo says that F's bus ran a red light and struck E's car broadside. D objects.

In its case D offers an accident report on its standard form made out by F three hours after the accident, which claims E ran the light. P objects. What rulings and why?

Under Rule 803(6), the test for admitting business records is "trustworthiness" rather than "routineness." Generally, the routineness of business record-keeping promotes objectivity and accuracy. But as the lower court pointed out in Palmer v. Hoffman, 318 U.S. 109 (1943) (quoted in the Advisory Committee's Notes to Rule 803(6)), even when accident reports are routinely made, the circumstances cause them to be "dripping with motivations to misrepresent." While the motivation to falsify may be present even in the case of the grocer's account book, the making of a report after an event that is likely to be the subject of a dispute creates special trustworthiness problems. In this circumstance the function of the report may be to prepare for litigation, not business.

Rule 803(6) addresses this problem by adding the proviso that evidence covered by the exception will be admitted "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." This, in effect, gives the trial court discretion to exclude evidence otherwise within the letter of the exception.