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225 Pa. Code Rule 803(6). Records of a Regularly Conducted Activity.

Rule 803(6). Records of a Regularly Conducted Activity.

   (6)  Records of a Regularly Conducted Activity. A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition 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’’, which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted 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)   the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.


   Pa.R.E. 803(6) differs from F.R.E. 803(6). One difference is that Pa.R.E. 803(6) defines the term ‘‘record.’’ In the Federal Rules this definition appears at F.R.E. 101(b). Another difference is that Pa.R.E. 803(6) applies to records of an act, event or condition, but does not include opinions and diagnoses. This is consistent with prior Pennsylvania case law. See Williams v. McClain, 520 A.2d 1374 (Pa. 1987); Commonwealth v. DiGiacomo, 345 A.2d 605 (Pa. 1975). A third difference is that Pa.R.E. 803(6) allows the court to exclude business records that would otherwise qualify for exception to the hearsay rule if the ‘‘source of information or other circumstances indicate lack of trustworthiness.’’ The Federal Rule allows the court to do so only if either ‘‘the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.’’

   If offered against a defendant in a criminal case, an entry in a record may be excluded if its admission would violate the defendant’s constitutional right to confront the witnesses against him or her, see Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); however, forensic laboratory reports may be admissible in lieu of testimony by the person who performed the analysis or examination that is the subject of the report, see Pa.R.Crim.P. 574.


   The provisions of this Rule 803(6) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 9, 2016, effective January 1, 2017, 46 Pa.B. 7436. Immediately preceding text appears at serial pages (365905) to (365906).

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