EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 6, 2013

What Can Brown do for You: Is Audits Routinely Prepared After Bank Robberies Business Records?

Federal Rule of Evidence 803(6), the business records exception, provides an exception to the rule against hearsay for

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Since the pre-Federal Rules case of Palmer v. Hoffman, 318 U.S. 109 (1943), courts have consistently held that accident reports do not qualify for admission as business records because they are not prepared in the regular course of business and instead are prepared with an eye toward litigation. Given this, how does the recent opinion of the Third Circuit in United States v. Brown, 2013 WL 3970157 (3rd Cir. 2013), make any sense?

In Brown

On the morning of October 1, 2007, two men wearing “Scream” masks robbed the S & T Bank in Ford City, Pennsylvania, at gunpoint, absconding with over $24,500. The robbers fled on foot, stole a parked van, and drove away. About thirty minutes later, police found the van abandoned by the side of the road, searched it, and found a mask identical to those worn by the robbers.

Allen Brown was eventually charged with bank robbery in connection with this crime, and DNA evidence recovered from one of the masks in the van was used to convict him at trial. The prosecution also presented

the results of a dual-control audit performed by bank employees immediately following the robbery, which showed that the bank robbers stole $24,525.01. The government also offered testimony from a bank official, Stuart Rattner, who testified about the bank's policies for handling robberies, including the audit procedures. Brown objected on hearsay grounds to the introduction of the documents and to Rattner's testimony, but the District Court overruled his objections.

After he was convicted, Brown appealed, claiming, inter alia, that the audit was inadmissible under Federal Rule of Evidence 803(6). The Third Circuit disagreed, concluding that

Here, as established through Rattner's foundation testimony, the bank audit was prepared on the day of the robbery by employees who were present and who had personal knowledge of the audit results. Preparing such audit reports was a regular practice in cases of robbery, and the records were kept in the ordinary course of business. We find no abuse of discretion by the District Court in its decision to admit the bank audit under Rule 803(6).

I think that I disagree. The audit was still essentially an accident report, and the fact that such audits were routinely done after robberies doesn't change that fact. A robbery is not part of the regular course of business, and the bank's audit was still prepared with an eye toward litigation. I assume that must corporations routinely complete accident reports in the wake of accidents, whether they be slips and falls, car crashes, or robberies. And yet, as far as I can tell, this has never previously led a court to hold that such a routine accident report is admissible under Federal Rule of Evidence 803(6)



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