§ 33.12 Public Records: FRE 803(8)
| Jurisdiction | United States |
The Federal Rules use the term "public records" to refer to governmental records, sometimes also known as official records. The term "public" can be misleading because these records need not be "open" to the public.
Rationale. "Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record."138
Rule 803(8) recognizes three types of public records: (1) those setting forth the activities of a public office, (2) those recording matters observed while under a legal duty, and (3) investigative reports. The rule contains two limitations. First, otherwise admissible public records may be excluded if the sources of information or other circumstances indicate a lack of trustworthiness. Second, certain types of police records are inadmissible in criminal cases.
Related rules. Several other hearsay exceptions deal with specific types of public records.139 Moreover, other rules deal with different aspects of public records. Rule 1005, by permitting the use of certified copies, recognizes an exception to the "best evidence" rule for public records. Authentication of public records is governed by Rules 901(b) and 902. Under the latter rule, many public records are self-authenticating and hence admissible without the need to produce an authenticating witness. All these provisions combine to make admissibility quite easy to achieve.
[A] Activities of a Public Office
Rule 803(8)(A)(i) provides for the admission of records setting forth the activities of a public office. For example, records of account are admissible.140 This division is the most straightforward one in the rule. Although the rule contains no explicit firsthand knowledge requirement, that requirement is implicit. As with business records, the person making the record need not have firsthand knowledge so long as the official transmitting the information had such knowledge.
[B] Matters Observed Under a Legal Duty
Rule 803(8)(A)(ii) governs records setting forth matters observed while under a legal duty to report, excluding in criminal cases some law enforcement reports. As illustrations of the rule, the federal drafters cited cases admitting (1) a letter from an induction officer to a District Attorney, pursuant to army regulations, stating facts and circumstances of the accused's refusal to be inducted into the military, (2) an affidavit of a White House personnel officer that the search of records showed no employment of an accused charged with fraudulently representing himself as an envoy of the President, (3) Weather Bureau records of rainfall, and (4) a map prepared by a government engineer from information furnished by men working under his supervision.141 A more recent case involved a chain-of-custody receipt.142
Official duty; double hearsay. The firsthand observations of the official making the report or those of another official with a duty to report come within the exception. However, hearsay statements by third persons are not admissible merely because they are included in a public record.143 For example, 911 tapes are public records, but the statements recorded are made by strangers who are under no duty to report accurately. However, other exceptions, such as present sense impressions or excited utterances, may apply.144
[1] Law Enforcement Records Exclusion
The rule specifically excludes some law enforcement reports in criminal cases. According to the Senate Committee Report, the police records exclusion is based on the belief that "observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases."145 In addition, the legislative history indicates that Congress was concerned with the Confrontation Clause problems raised by the use of police records in criminal trials.146
Routine nonadversarial records. Most federal courts have adopted a flexible approach, holding that the police records exclusion does not apply to all such records. For example, the Ninth Circuit has held that "Congress did not intend to exclude police records of routine, nonadversarial matters."147 The court focused on the Senate Committee Report's language concerning the "adversarial nature of the confrontation" between the police and the defendant "at the scene of the crime or the apprehension of the defendant."148 The "factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observation and investigation of crime are simply not present. Due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter, such records are, like other public documents, inherently reliable."149 A computer report containing identification numbers of stolen vehicles,150 a state prison fingerprint card,151 and a Customs Service computer printout of license plates of cars crossing the border have all been admitted as routine, nonadversarial records.152
[2] Business Records
If a record is excluded because it involves a matter observed by law enforcement personnel, the question remains whether the record may be admitted under the business records exception. As noted below, there is often an overlap between the two exceptions. In United States v. Oates,153 the Second Circuit answered the question in the negative. In other words, "Rule 803(6) cannot be used as a back door to admit evidence excluded by Rule 803(8)(B)."154 Some courts, however, admit the record if the declarant testifies155 because the declarant is subject to cross-examination.
[3] Offered by Defense
On its face, Rule 803(8)(B) is absolute—excluding police records when offered by the defense as well as by the prosecution. However, the D.C. Circuit rejected this interpretation, realizing that it was probably a congressional oversight.156 The police records exclusion was added by Congress specifically to deal with prosecution use of these records.
[C] Investigative Reports
Rule 803(8)(A)(iii) admits investigative records in civil actions and against the prosecution in criminal cases. The underlying theory is that reports, for example, dealing with the causes of mine disasters issued by the Bureau of Mines or of airplane crashes issued by the National Transportation Safety Board are...
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