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State v. Dean9/28/2001
he regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used on this paragraph includes every kind of business, institution, association, profession, occupation, and calling, whether or not conducted for profit.
Two objections were presented by the defendant to the entry of MSARC records as business records. The first was that Forensic Nurse Examiner Sally DiScenza was not the "keeper" of the records. However, Rule 803(6) does not impose that requirement, as explained by Neil P. Cohen et al., Tennessee Law of Evidence, § 8.11 (4th ed. 2000) (footnotes omitted), in pertinent part:
Rule 803(6) simply provides that the witness be the records "custodian or other qualified witness." Typically that witness will be in charge of maintaining records of the particular business, but other employees or officers or appropriately informed witnesses could be used as well. The key is that the witness have knowledge of the method of preparing and preserving the records. If no witness is available to testify, the records cannot be authenticated as business records, unless the parties stipulate to authentication.
Based upon Ms. DiScenza's duties and experience, we conclude that she was a "custodian or other qualified witness" and, as such, qualified to testify as to the business records.
Additionally, the defendant contends that even if the MSARC records are "business records," they cannot come within the Rule 803(6) hearsay exception because they were prepared for the purpose of litigation. We disagree with this argument. The distinction between records prepared in the normal course of business, as were the MSARC records about which testimony was given, and records used only incidentally in litigation, as opposed to being prepared for it, was explained by Neil P. Cohen et al., Tennessee Law of Evidence, § 8.11 (4th ed. 2000):
In order to have sufficient indicia of trustworthiness to qualify as a business record under Rule 803(6), the record must have been made in the "regular practice of that business activity," and it must have been "kept in the course of a regularly conducted business activity." An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Rule 803(6). On the other hand, an investigative accident report compiled by a business as a routine matter should not be excluded solely because litigation sometimes ensues following an accident.
The testimony established that MSARC records were made in the regular course of the Center's business, although, obviously, such records might be used in legal proceedings. However, that possibility did not mean that the records were "dripping with motivations to misrepresent," Hoffman v. Palmer, 129 F.2d 976, 991 (2nd Cir. 1942), as might have been the case had they been prepared specifically for use in litigation. Accordingly, we conclude that the MSARC records were admissible as business records. See State v. Goldston, 29 S.W.3d 537, 540-42 (Tenn. Crim. App. 1999) (holding that records of Bradley Memorial Hospital and Erlanger Medical Center of defendant's blood tests were admissible as business records for prosecution of defendant for DUI).
III. Chain of Custody of DNA Evidence
We will next examine the defendant's claim that the evidence was insufficient to establish the ch
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