Education – Children’s report cards and teacher comments are not admissible under business records exception to hearsay rule.

In an issue of first impression, the Family Court, Kings County, held that children’s report cards and teacher comments are not admissible under the business records exception to the hearsay rule.

The Court considered many factors in its decision and also into consideration that a child’s academic and social progress in school and the relative capacity of each parent to foster the child’s intellectual development are often major considerations in custody disputes, and evidence bearing on those issues is certainly relevant.

 The Court reasoned that before business records may be admitted as an exception to the hearsay rule, the proponent must establish specific foundational facts: (1) that the record be made in the regular course of business—essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of the functions of the business, (2) that it be the regular course of such business to make the record, in other words, a double requirement of regularity—essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record, and (3) that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.

 The Court concluded that while recording teacher grades and comments may be part of the business of a school, the grades and comments themselves are clearly hearsay and do not constitute an “act, transaction, occurrence or event,” within meaning of business records exception to hearsay rule; but rather, they are expressions of the subjective judgments of the teacher who determines or authors them, formulated over a period of time, and based on any number of factors.

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