April 6, 2018 – Published by Robinson Law Firm

In criminal cases, we often want to use cell phone records, credit card receipts, Facebook post/messages, Instagram photographs, and other business records in the defense of our client. The records custodian must authenticate these records before the court will admit them.  In the past, this required that you issue a subpoena to the records custodian and coordinate with their schedule to appear in court and authenticate the records. The exceptions to this rule were specific categories of self-authenticating public records certified or under seal pursuant to Rule 902, and the authentication of medical records by affidavit under Rule 45. In 2015, Rule 803(6) was amended to expand this latter method of authentication to all business records.

Rule 803(6) Was Amended Effective October 1, 2015.

Rule 803(6) was amended effective October 1, 2015, to allow all business records to be authenticated “…by affidavit or by document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.  These business records must be from a nonparty and you must give advance notice to you opponent of this intent to authenticate the records by affidavit.

Business Records Are Not Subject To Confrontation Objections.

Crawford v. Washington, 541 U.S. 36 (2004), held that business records are not “testimonial” and as such, are exempt from constitutional objections based on confrontation.  These business records are still hearsay, but Rule 803(6) creates an exception even though the records custodian is available as a witness.  However, kept in mind the Supreme Court’s definition of records that are testimonial in nature (i.e. those “… material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”.).  These records are subject to constitutional objections based on confrontation absent the opportunity to confront and cross-examine the witness in person.

What Are The Requirements For Authentication Under Rule 803(6)?

The affidavit should be set forth in the caption of the case and should contain the following language:  1) the attached copies of the records/documents subpoenaed are true and accurate copies of the original records/documents that were made and kept in the regular course of [insert business]; 2) the attached copies of the records/documents were made at or near the time of the information recorded; 3) it was the regular practice of [insert business] to record the information set forth in the attached records/documents;  4) the affiant is familiar with the records and the circumstances under which they were made; and 5) that [insert business] is not a party to the action set forth above.

Rule 803(6) requires that the proponent of such records provide advance notice “… to all other parties of intent to offer the evidence with authentication by affidavit.”  No time period is specified by the Rule.  Ten (10) business days or two weeks should be used as a minimum, absent specific reasons for a shorter notice.


Rule 803(6) is a great tool to simplify and expedite the authentication of business records, and to avoid the expense and coordination necessary to authenticate the business via live testimony from the records custodian.

If you want to learn more about this issue or any other criminal issue, or need representation in a criminal matter, please feel free to contact The Robinson Law Firm, P.A. today.