Admissibility: Curriculum Vitae

The admissibility of a Curriculum Vitae (CV) for a tendered expert has become commonplace in courtrooms throughout the country. This practice questions the very purpose of the hearsay rules.

Hearsay is defined as "[a] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FRE 801(c). A "statement" includes both oral and written assertions. FRE 801(a).

A CV admitted as an exhibit is offered for the purpose of proving a witness' qualifications aside from those offered in testimony. Many judges fail to consider CVs as hearsay because they are out of court statements by the witness who is now under oath on the witness stand. Unfortunately, this common misconception makes the rest of this discussion moot in many courtrooms. While the cumulative nature of such an exhibit is often met with an objection, careful questioning and properly laid foundation can resolve such an issue. There should be no question that a CV received into evidence is hearsay (but see below). The question is whether it properly falls within a hearsay exception: The answer should be "not without more foundation."

Before diving into why a CV does not properly meet any hearsay exception, it is important to point out the policy rational that is shared by the numerous exceptions. The various exceptions to the hearsay rule, found in FRE 803, 804, and 807, share one common theme: reliability. While out of court statements are inherently unreliable, it is thought that under certain circumstances such a statement can be deemed reliable enough. Of note is that the finder of fact can still assess the credibility of such a statement, but hearsay is a question of admissibility first, then credibility. So why is a CV, a document that persons routinely exaggerate, more reliable than any other out of court statement?

Many trial attorneys lay foundation for a CV under the business record exception of FRE 803(6). For an out of court statement to meet the business record exception, it must be: (1) made at or near the time of the event; (2) by a person with personal knowledge; (3) kept in the ordinary course of business; and (4) created as part of the regular course of that business. See See Id. The rule also safeguards against the admissibility of such a document that indicates a lack of trustworthiness. Id. The policy behind this specific exception is the idea that it is in a business' (or other organization's) best interest to create accurate documents and records. In other words, documents that are created for the purpose of a business are thought to be reliable enough to get over the admissibility hurdle because any intent to deceive in order to achieve a different trial outcome is not present at the time the record was created. FRE 803(6) requires the document to be made at or near the time of the reported truth for this very purpose. The rule requires a showing that the record was created by a person with personal knowledge as a means to this same end. Additionally, the rule requires that the document be made and kept in the ordinary course of business to exclude documents that are created in trial preparation and further differentiate such a document from inadmissible hearsay. Furthermore, it must be shown that the document does not have a lack of trustworthiness that would exclude it from the business record exception. So, let's see how a CV describing the qualifications of a tendered expert witness stacks up:

(1) Made at or near the time of the event?
Some persons update their CVs routinely. One would suppose that a person that makes at least part of their living as an expert witness is sure to update their CV at or near the time of the new accomplishment. For lay persons updating an employment CV, it is not uncommon to additionally edit the description of past accomplishments as well. Such editing well after the fact on the part of an expert witness, however, is not proper. Proper foundation, therefore, would require the proponent of the CV to establish that each entry on the CV was made at or near the time of the event. Foundation requirement: "Were each of the entries on your CV made at or about the time of the event or accomplishment?" "Have any of the entries been updated or changed since they were made?"

(2) By a person with personal knowledge?
There is no question that a person has personal knowledge to the events and accomplishments on their own CV. Foundation requirement: "Is this your CV?"

(3) Kept in the ordinary course of business?
This foundation component is tricky and depends on the expert. In order for an expert to keep such a record in the ordinary course of business, the expert needs to have a business purpose for which they keep such a CV. Most experts tailor their witness CVs to be much different from employment CVs. Therefore, there are many ways to lay a foundation for this element of the rule. Unfortunately, witnesses are all too often asked, "Is this CV kept in the ordinary course of business?," and the expert is trained to reply, "Yes." A further foundation should be made as to which course of business. For example, an expert may keep this CV in order to show curious patients, or for the portion of their business that includes expert witness testimony, or for employment purposes. Foundation requirement: "Do you keep this CV in the ordinary course of your business?" "For what course of business is this CV kept?"

(4) Created as part of the regular course of that business?
This goes hand-in-hand with #3. Foundation requirement: "Did you create the entries on this CV in the regular course of the business you described?"

Whether a CV has inherent questions as to its reliability makes admissibility even more problematic. CV are mini-autobiographies. The temptation to expand on certain accomplishments either through deception or creative polish tends to place in question the trustworthiness of the document even before the opponent has an opportunity to voir dire. Foundation requirement: "Does this CV truly and accurately describe each of the listed accomplishments?"

Given a proper foundation, a CV may be admissible under FRE 803(6), but such a foundation is not laid in present day courtrooms.

Some courts have found that a CV falls within the mysterious residual hearsay exception of FRE 807. The rule requires: (1) circumstantial guarantees of trustworthiness equivalent to Rule 803 and 804; (2) the statement is to a material fact; (3) the statement is more probative on the point than any other evidence from the proponent; (4) the interests of both justice and the rules of evidence are best served by the admission of the statement; and (5) proper notice is given to the adverse party. See FRE 807.

A CV should not fall within the Rule 807 exception because of requirement #3 (a CV is not more probative than other available evidence). The witness should be able to testify to each of the items on his or her CV; if not, there is a personal knowledge problem pursuant to Rule 602. While the witness’ memory may have to be refreshed, the witness can testify to each of the items. This type of testimony is not unreasonable. Therefore, the 807 exception should not apply to a CV, which can be alternatively used to refresh the witness’ memory.

Some courts have found that a CV is not hearsay at all. The theory goes that an out of court statement made by a witness now available for cross examination in front of the trier of fact is not hearsay if the witness acknowledges its truth on the record. However, a judge must still determine admissibility based on FRE 104(a). Additionally, if the claim that a CV is not hearsay is relied upon for admissibility, why have we made it our practice to lay foundation in an attempt to comply with the business record exception? Furthermore, if prior written statements that are tendered through the author/witness are admissible over a hearsay objection, why don't all witnesses prepare written statements of their testimony prior to trial and admit the statement at the end of live testimony? To say that prior statements by a witness are admissible over a hearsay objection just because the witness is currently under oath would allow for a wide and wild variety of possibilities - we'll get into these on another day.

Overall, the robotic nature of laying foundation for the admissibility of a CV should be questioned. Further foundation should be required before the admission of a CV, as it may be the very thing that the hearsay rules attempt to exclude... unreliable evidence.