Sometimes. A company, financial, or medical record may be admitted for its truth in a California criminal trial if the prosecution establishes the required foundation. A qualifying copy and custodian affidavit can satisfy part of that process in some circumstances, but a business label or affidavit does not automatically make every statement in a record admissible. (Evidence Code § 1200; § 1271)
What foundation does the prosecution need?
Evidence Code section 1271 sets out four conditions for a writing offered as a record of an act, condition, or event:
| Foundation question | What the record and testimony need to show |
|---|---|
| Regular course | The writing was made in the regular course of the organization’s business. “Business” also includes government activity and nonprofit activity under section 1270, but an agency or company name alone does not establish the foundation. (Evidence Code § 1270) |
| Timing | It was made at or near the time of the act, condition, or event it records. |
| Qualified explanation | A custodian or other qualified witness identifies the writing and explains how it was prepared. |
| Trustworthy sources and method | The sources of information and the method and time of preparation indicate trustworthiness. |
The prosecution must establish each condition. A record obtained by subpoena, stored by an organization, or bearing its logo does not by itself answer who entered the information, when it was entered, or whether the source and process are trustworthy. Section 1271 is an exception to the hearsay rule, which generally bars an out-of-court statement offered to prove what it says. (Evidence Code § 1200; § 1271)
Does a custodian have to testify in person?
Not in every qualifying records-production situation. Evidence Code sections 1560, 1561, and 1562 describe a process for certain subpoenaed records, including production of a copy and an affidavit from a custodian or other qualified witness. Section 1562 makes admissibility conditional: the copy must be one that would have been admissible had the witness appeared and testified to the matters in the affidavit, and section 1271’s requirements still must be met. (Evidence Code §§ 1560, 1562, 1271)
That means an affidavit can provide evidence about the record and its preparation, but it is not a blanket ruling that the whole document comes in. Whether a live witness is needed depends on the records procedure, the foundation, and the issue being raised. The exact exhibit, affidavit, and any trial notice matter.
A record can contain a separate hearsay statement
Even if a report was made and kept as a business record, a statement inside it may present another hearsay question if offered for its truth. In People v. Sanchez, the California Supreme Court used an emergency-room report to illustrate the distinction: the report itself may qualify as a business record, while a patient’s assertion recorded in it needs its own basis for admission if the prosecution offers that assertion for its truth. (People v. Sanchez (2016))
So counsel may need to examine who supplied each important fact, why that person supplied it, and what specific statement the prosecution wants the jury to accept as true. The business-record exception does not automatically resolve every layer of a document.
Routine records and prosecution-created forensic certificates raise different questions
The confrontation clause is a separate issue from the hearsay exception. The U.S. Supreme Court has distinguished records prepared for ordinary administration from sworn forensic certificates created to establish a fact for use at trial. In Melendez-Diaz v. Massachusetts, the Court treated the prosecution-created certificates at issue as testimonial and held that the analysts were subject to confrontation. That decision does not mean every company or medical record used by the prosecution requires its maker to testify, or that a document becomes testimonial merely because it is offered at trial. (Melendez-Diaz v. Massachusetts (2009))
If a proposed exhibit includes a forensic analysis or was created with trial use in mind, counsel can assess that separate question from the record’s ordinary-course foundation. The document’s nature and purpose matter; no single label decides the issue.
What to review with your lawyer
Share the exact proposed exhibit, any custodian certification or affidavit, and any trial notice with your lawyer. For each important entry or assertion, identify who supplied it, when and why it was made, how it was entered or prepared, and what the prosecution is offering it to prove. Also flag any statement within the record that came from someone outside the ordinary record-making process, or any report prepared to establish a fact for trial.
These checks help frame the evidence questions; they do not determine the ruling in a particular case. For broader context, see the firm’s criminal trials overview. The Law Offices of David S. Chesley can review the proposed evidence and trial record with you. Call (800) 755-5174.