Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right?
This post discusses cases addressing the relationship between the “police report exclusion” in Rule 803(8) and other rules of evidence. Few North Carolina cases have closely analyzed the issue, but the federal rules of evidence and many other states’ evidence rules contain a similar exclusion. Together, cases here and elsewhere provide a guide, although not a definitive answer, to this question.
Does Rule 803(8) trump other hearsay exceptions? An early decision by the Second Circuit Court of Appeals held that the exclusion of police reports under Rule 803(8) controls the admissibility of such reports under other hearsay exceptions. In United States v. Oates, 560 F.2d 45 (2d Cir. 1977), the government offered a government chemist’s report finding that the white powdery substance seized from the defendant was heroin. The defendant objected that the report was inadmissible hearsay under Rule 803(8). The Second Circuit agreed. The court found that Congress’s purpose in enacting the exclusion in Rule 803(8) was to prevent the government from proving its case against the accused through out-of-court reports and documents prepared by law enforcement personnel. The court found further that Congress intended to preclude the government from utilizing other hearsay exceptions as a way around the exclusion. The court rejected the government’s argument that the chemist’s report was admissible under the hearsay exception for business records in Rule 803(6) or the residual hearsay exceptions in Rules 803(24) and 804(5) even though those rules do not expressly exclude police reports. Reviewing the legislative history of the rule, the court stated: “We thus think it manifest that it was the clear intention of Congress to make evaluative and law enforcement reports absolutely inadmissible against defendants in criminal cases. Just as importantly, it must have been the unquestionable belief of Congress that the language of [Rule 803(8)] accomplished that very result.” Id. at 72. The court ended with the broad statement that the report was “ineligible to qualify under any hearsay exception.” Id. at 83.
Other courts, although not all, have since rejected this blanket approach and have considered the specific hearsay exception at issue in determining whether a police report is admissible. The Second Circuit itself later found that the police report exclusion does not apply to all hearsay exceptions. See United States v. Yakobov, 712 F.2d 20 (2d Cir. 1983) (holding that police report exclusion did not bar evidence under Rule 803(10), the exception for proof of the absence of a public record or entry). Below are the principal exceptions that could apply.
Exception for recorded recollection. A number of courts have held that a police report otherwise excluded by Rule 803(8) is admissible under the hearsay exception for recorded recollection in Rule 803(5), the situation described at the beginning of this post. That exception allows a record to be read into evidence if, to put it simply, the witness no longer remembers the matters reflected in the record. Courts have held that this exception does not undermine the main goal of the police report exclusion—to prevent the prosecution from proving its case through mere reports, without calling the officer to the stand and without giving the defendant an opportunity to cross-examine the officer. See, e.g., United States v. Picciandra, 788 F.2d 39, 44 (1st Cir.1986); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979); State v. Vigil, 336 P.3d 380, 386–88 (N.M. Ct. App. 2014), cert granted, 337 P.3d 95 (N.M. 2014).
At least one court has held that the recorded recollection exception does not allow the admission of a police report that is excluded by Rule 803(8). Offering another reason for the exclusion, the court observed that such reports, particularly when they concern on-the-scene investigations, are considered less reliable than records prepared by other public officials because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and the likelihood of the report’s use in litigation. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1086–87 (9th Cir. 2000); see also State v. Harper, 96 N.C. App. 36, 40–41(1989) (recognizing this rationale in finding police report inadmissible under Rule 803(8); court did not address admissibility under other rules).
Regardless of the resolution of this question, the prosecution may use a police report to refresh an officer’s recollection while testifying, which is permitted by Rule of Evidence 612 under the conditions stated there. In that instance, the report is not being offered into evidence and does not have to meet the rules on hearsay. See Baker v. State, 177 S.W.3d 113, 123 (Tex. Ct. App. 2005) (so holding); see also 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §224, at 881 (7th ed. 2011).
Exception for business records. Many courts have held that the hearsay exception for business records in Rule 803(6) cannot be used as a “back door” for evidence precluded by Rule 803(8). See United States v. Cain, 615 F.2d 380, 382 (5th Cir. 1980); accord United States v. Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002); Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1344–45 (Fed. Cir.1999); United States v. Brown, 9 F.3d 907, 911 (11th Cir.1993); United States v. Horned Eagle, 214 F. Supp. 2d 1040 (D. S.D. 2002); see also Fischer v. State, 207 S.W.3d 846, 859–60 (Tex. Ct. App. 2006) (holding for similar reasons that State could not avoid exclusion in Rule 803(8) by offering officer’s observations from report under exception for present sense impression in Rule 803(1)).
The North Carolina courts appear to recognize that a police report excluded by Rule 803(8) is inadmissible under Rule 803(6). In State v. Forte, 360 N.C. 427, 436 & n.1 (2006), the North Carolina Supreme Court expressed this view, relying on the official comment to Rule 803(8), which states that “[p]ublic records and reports that are not admissible under Exception (8) are not admissible as business records under Exception (6).” See also 2 Brandis & Broun §225, at 886–87. A Court of Appeals opinion states that Rule 803(8) does not limit the admissibility of law enforcement records under Rule 803(6), but the opinion, issued shortly after Forte, does not discuss Forte, the official comment to Rule 803(8), or authority interpreting comparable evidence rules elsewhere. See State v. Wise, 178 N.C. App. 154, 160 (2006).
Some courts have held that a report excluded by Rule 803(8) may be admitted under Rule 803(6) if the officer testifies because the defendant has the opportunity to cross-examine the officer. See, e.g., United States v. Sokolow, 91 F.3d 396, 404–05 (3d Cir. 1996); United States v. King, 613 F.2d 670, 672–73 (7th Cir. 1980). This gloss is difficult to see in the hearsay exceptions in Rule 803, none of which depend on whether the declarant is available as a witness.
Other principles. Of course, all of the above exceptions are subject to the Confrontation Clause, as interpreted by the U.S. Supreme Court’s landmark decision in Crawford v. Washington, 541 U.S. 36 (2004). Under Crawford and subsequent decisions, an officer’s observations, as reflected in his report, will ordinarily be treated as testimonial evidence and, regardless of a state’s hearsay exceptions, will be inadmissible unless the officer testifies.
If the officer testifies, the police report exclusion may still bar admission of the report as a matter of North Carolina law. Could the report be admitted as corroborative evidence if excluded by Rule 803(8)? North Carolina case law allows consistent statements made by a witness outside the proceeding to corroborate consistent testimony by the witness during the proceeding. The issue arose in one North Carolina case. Finding no prejudice from admission of the evidence, the court refrained “from resolving this interesting evidentiary issue on appeal.” State v. Johnson, 203 N.C. App. 718, 723 (2010). Even if permissible for corroborative purposes, a court may find a police report more prejudicial than probative under Rule of Evidence 403 and exclude it for that reason. Care also must be taken to redact or otherwise exclude portions of a report that are not germane, as the trial court did in Johnson.