How does a party lay a foundation for the admissibility of business records when the custodian cannot testify?

How does a party lay a foundation for the admissibility of business records when the custodian cannot testify?

• A. The records must be authenticated by the custodian personally.
• B. The records must be authenticated by a living custodian in person only.
• C. The court will automatically admit them without any foundation.
• D. Offer testimony that the records were kept in the ordinary course by someone with knowledge; the custodian’s testimony or another foundation may be used.

Answer: (D)

The key idea is how to prove the business-records foundation when the custodian can’t testify. For the records to come in under the business records exception, you must show they were kept in the ordinary course by someone with knowledge and that they were created at or near the time of the event. If the custodian can’t testify, you’re not left without a route. You can still establish the foundation by presenting testimony from another person with knowledge that the records were kept in the ordinary course by someone who had information about them. That testimony can stand in for the custodian’s testimony, or be used alongside a different proper foundation, to show the records were maintained in the usual course. This approach preserves reliability while accommodating an absence of the custodian’s direct testimony. The other options are too restrictive or incorrect: requiring the custodian’s personal authentication in all cases, requiring a living custodian in person only, or assuming automatic admission without any foundation.

The key idea is how to prove the business-records foundation when the custodian can’t testify. For the records to come in under the business records exception, you must show they were kept in the ordinary course by someone with knowledge and that they were created at or near the time of the event. If the custodian can’t testify, you’re not left without a route. You can still establish the foundation by presenting testimony from another person with knowledge that the records were kept in the ordinary course by someone who had information about them. That testimony can stand in for the custodian’s testimony, or be used alongside a different proper foundation, to show the records were maintained in the usual course. This approach preserves reliability while accommodating an absence of the custodian’s direct testimony. The other options are too restrictive or incorrect: requiring the custodian’s personal authentication in all cases, requiring a living custodian in person only, or assuming automatic admission without any foundation.