Original Post: “Public Records as Evidence in Criminal Cases,” Tennessee Bar Journal, March 2016, www.tba.org/journal/public-records-as-evidence-in-criminal-cases
The hearsay exception for public records could win the prize for the most underutilized evidence rule in criminal cases. Rule 803(8) is also a rule where the differences between the state and federal rule could change the outcome. In criminal cases, both the state and federal versions of the rule allow prosecutors and defense counsel to offer a variety of records created by an agency for the truth of the matters asserted in the records.
The federal version of Rule 803(8) creates an opportunity for a criminal defendant to introduce a wide array of information from factual findings from any agency investigation.
The current text of Federal Rule of Evidence 803(8) provides:
Public Records. 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.
This broad provision allowing admission by a criminal defendant of factual findings from a legally authorized investigation was rejected in Tennessee. The Tennessee version provides:
(8) Public Records and Reports. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of public offices or agencies setting forth the activities of the office or agency or matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel.
The most obvious difference is that a police report that a defendant finds helpful can come in under this rule in federal court but is prohibited in Tennessee courts. The Advisory Commission Comment notes that the Tennessee version “expressly rejected” factual findings from investigations. That difference is significant because the federal rule authorizes the admission of broad categories of information that could help a federal criminal defendant. Interpreting what is now Federal Rule of Evidence 803(8)(A)(iii), the United States Supreme Court has held that the “factual findings” referenced in the rule can also include opinions and conclusions of the agency.[1] This rule was valuable for example in a case in which one of our clients was charged with government contract fraud but one of the agencies involved had done an investigation that concluded that the contracts had been completed to specification. Under the federal rule, those opinions were admissible. Another basic example is that a fingerprint report expressing an opinion that prints taken from the scene did not match the defendant satisfied the exception for factual findings against the government.[2]
Think about the potential scope of this exception. We can all agree that the federal government has numerous agencies, and those agencies do a lot of “legally authorized investigations.” For defense counsel, it is worth brainstorming whether you might be able to find factual findings (along with accompanying opinions) in government reports from an agency that is not involved in the case on trial.[3] Government investigations of safety, weather, product liability and accounting come to mind, just to name a few areas to explore.
The federal rule doesn’t mean that a defendant can get anything favorable in just because it is in a government report. The information in the reports may be objectionable for violating other evidence rules. For example, a hearsay statement of a third party can still be excluded.[4]
Although the factual finding subsection helps only federal criminal defendants, Tennessee practitioners and federal prosecutors should not ignore public records. Both versions of the rule authorize the introduction of matters observed while under a legal duty to report (except law enforcement reports).[5] For example, under Tennessee law, certification and maintenance records of a breath test machine can be admitted.[6] Also, unlike the business records exception, the public records exception does not require testimony of a custodian or other qualified witness.[7] In fact, a comparison of Rule 803(8) with the business records exception shows that it may be easier to satisfy the public records exception than the requirements of the business records exception.[8] The state can also use this exception to admit such things as prison reclassification records[9] and in some cases autopsy reports.[10] Although police reports are excluded, that does not mean that prosecutors cannot use this rule to seek to admit other matters that government officials reported in carrying out their duties.
Both rules authorize exclusion of untrustworthy reports. The federal rule was recently amended to make it clear that the burden is on the party opposing admission to show a lack of trustworthiness.
I began by saying the difference between the state and federal rules could change the outcome of a case. Consider a recent fraud case from the Fifth Circuit. Two defendants had been convicted in a fraud scheme after their medical device company manipulated its quarterly earnings statements. Pre-indictment, both the Latham & Watkins law firm and the Securities Exchange Commission had produced investigative reports that concluded that these two defendants had been misled by others and had not committed fraud. Not unexpectedly, defense counsel wanted to introduce those reports, and the United States Attorney successfully moved to exclude them, arguing that the jury was in the same position to make that judgment. The Fifth Circuit found the exclusion to have been an abuse of discretion and held that the expert administrative guidance would have properly informed the jury regarding the complexities of accounting fraud.[11] Under the Tennessee Rule, the investigative findings would have certainly been excluded.
In preparing your cases for trial, don’t forget to mine government records and reports for valuable and admissible proof.
Notes
- Beech Aircraft Co. v. Rainey, 488 U.S. 153 (1998). The report at issue was a Judge Advocate General Report that was admitted in a products liability case that concluded that pilot error was the cause of the accident. The report that was admitted contained sections containing findings of fact, opinions and recommendations.
- United States v. Sutton, 337 F.3d 792 (7th Cir. 2003).
- See, 180 A.L.R. Fed. 61, Admissibility, Under Rule 803(8)(C) of Federal Rules of Evidence, of “Factual Findings Resulting from Investigation Made Pursuant to Authority Granted by Law” (cataloging cases both admitting and excluding evidence proffered under what is now 803(8)(A)(iii)).
- United States v. Mackey, 117 F.3d 24 (1st Cir.), cert. denied, 522 U.S. 975 (1997).
- F.R.E. 803(8)(A)(i)&(ii); Tenn. R. Evid. 803(8).
- State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992); State v. Korsakov, 34 S.W.3d 534, 542 (Tenn. Crim. App. 2000).
- Korsakov, 34 S.W.3d at 543.
- Cohen, Sheppeard & Paine, Tennessee Law of Evidence, § 8.13[3] (6th ed).
- State v. Wingard, 891 S.W.2d 628, 635 (Tenn.Crim.App.1994)(overruled on other grounds by State v. James, 81 S.W.3d 75 (Tenn. 2002).
- State v. Davis, 141 S.W.3d 600, cert. denied 543 U.S. 1156 (2004). The Tennessee Supreme Court recently clarified the circumstances under which such a report may be admitted consistent with the confrontation clause. State v. Hutchison, No. E2012-02671-SC-R!!-CD (January 14, 2016).
- United States v. Gluk, No. 14-51012 (5th Cir. January 25, 2016). Although the court relied on a number of public records exception cases, it did not technically decide the question of whether the reports fit the exception under 803(8). The court said it didn’t matter because the reports could have been effectively used for impeachment even if not introduced as exhibits. Id., slip op. at 6, f.n. 3.