§ 10.06 OFFICIAL RECORDS

• Jurisdiction: North Carolina

§ 10.06 OFFICIAL RECORDS

[1] THE DOCTRINE

The second major documentary exception to the hearsay rule is the official records doctrine. Just as business employees presumably are careful in gathering and recording information for their employers, public employees presumably are diligent in gathering and recording information for their employer, the government. For this reason, the common law and the Federal Rules admit official records as well as business entries. Federal Rule of Evidence 803(8) states the basic doctrine:

The following [is] not excluded by the rule against hearsay . . .: A record or statement of a public office if:

(A) it sets out:

(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Section 4.04 of Chapter 4 discusses the authentication of official records. As that section noted, the proponent of an official record rarely presents live, sponsoring testimony to authenticate the record. In most instances, live testimony is similarly unnecessary to lay the foundation for the official records exception to the hearsay rule. Two doctrines make the live testimony unnecessary. The first doctrine is judicial notice. The judge will ordinarily judicially notice the statute, regulation, or custom requiring that the public official prepare the record. Next, if the attested copy is fair on its face (complete with no erasures), the document's face creates a permissive inference that the officials followed the proper procedures in preparing the particular record.

[2] ELEMENTS OF THE FOUNDATION

At common law, a complete foundation for the official records hearsay exception includes these elements:

1. The record was prepared at or near the time of the fact or event recorded. Some cases and statutes no longer explicitly require this element. Federal Rule of Evidence 803(8) is illustrative; its language does not impose this requirement. In jurisdictions dispensing with this element, the only requirement is that the entry be properly prepared. If, long after the original event, the official discovers an error in the record and follows prescribed procedures for making a corrected entry,

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