Hearsay Exceptions: Public Records & Reports

Tag Archives: rule 803

Hearsay Exceptions: Public Records & Reports

Posted on February 24, 2014 by Jessica Smith

In my last blog post on hearsay exceptions, I discussed the business records exception. Here, I’ll address the hearsay exception for public records and reports.

Rule 803(8) provides a hearsay exception for “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

(A) the activities of the office or agency,

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law‑enforcement personnel, or

(C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.”

Covered Records and Reports. The rule refers to “[r]ecords, reports, statements, or data compilations, in any form.” N.C. R. Evid. 803(8)(A).

Activities of the Office or Agency. The rule covers records, etc. setting forth “the activities of the office or agency.” N.C. R. Evid. 803(8). Examples include:

records of a county tax department, State v. Oxendine, 112 N.C. App. 731, 738 (1993); and
a magistrate’s civil driver’s license revocation order, State v. Woody, 102 N.C. App. 576, 578 (1991).

Pursuant to Duty Imposed By Law. The rule covers records, etc. setting forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” N.C. R. Evid. 803(8)(B). This would include, for example a medical examiner’s investigation and autopsy report, In re J.S.B., 183 N.C. App. 192, 197-98 (2007), and reports by SBI analysts. State v. Acklin, 317 N.C. 677, 682 (1986). By contrast, one case held that a City Manager’s report of the police department’s handling of a murder case wasn’t the result of authority granted by law. State v. Hunt, 339 N.C. 622, 654 (1994).

In criminal cases, the rule excludes “matters observed by police officers and other law‑enforcement personnel,” N.C. R. Evid. 803(8)(B), such as officers’ observations during investigations. State v. McLean, 205 N.C. App. 247, 250 (2010). Thus, the notes of a non-testifying, undercover officer summarizing alleged drug transactions with the defendant are inadmissible under this exception. State v. Harper, 96 N.C. App. 36, 40 (1989). Also inadmissible is a defendant’s exculpatory statement to an officer that is contained in the officer’s report. State v. Maness, 321 N.C. 454, 459. However, this provision doesn’t exclude records of routine, ministerial matters made by law enforcement in a non-adversarial setting, such as booking records. See, e.g., McLean, 205 N.C. App. at 250-51.

Findings From an Investigation. The rule covers records, etc. setting forth “factual findings resulting from an investigation made pursuant to authority granted by law.” N.C. R. Evid.. 803(8)(C). The term “factual findings” doesn’t preclude admission of reports containing conclusions or opinions. Official Commentary to N.C. R. Evid. 803; see also In re J.S.B., 183 N.C. App. 192, 196-98 (2007) (the fact that a medical examiner’s investigation and autopsy report contained the medical examiner’s opinion as to cause of death in addition to objective observations of the victim’s physical injuries did not preclude admissibility).

Lack of Trustworthiness. Public records and reports are inadmissible if “the sources of information or other circumstances indicate lack of trustworthiness.” N.C. R. Evid. 803(8); see Official Commentary to N.C. R. Evid. 803 (this provision applies to all three parts of the rule).

Determining whether information or circumstances indicate a lack of trustworthiness requires a consideration of the totality of the circumstances surrounding “the making of the statement and that render the declarant particularly worthy of belief.” State v. Little, 191 N.C. App. 655, 666 (2008) (citation omitted). Compare id. (excluding a statement by non-testifying witness contained in an SBI agent’s crime scene report), with State v. Acklin, 317 N.C. 677, 682 (1986) (impartiality of SBI agents who created reports and ability to cross-examine witnesses assured trustworthiness), and State v. Watson, 179 N.C. App. 228, 245 (2006) (admitting prison records after finding that the circumstances did not indicate a lack of trustworthiness).

Authentication. All that is required to authenticate a public record is evidence that the record, etc. “is from the public office where items of this nature are kept.” State v. Oxendine, 112 N.C. App. 731, 738 (1993) (quoting N.C. R. Evid. 901(b)(7)). For original public records or documents, this is typically done with testimony by the custodian that it “is a part of the records or files of the custodian’s office.” Id.; see also 2 Brandis & Broun at 900.

N.C. R. CIV. P. 45(c)(2), which applies in criminal cases, G.S. 15A-801, allows custodians of public records to submit certified copies of records and affidavits in response to subpoenas.

Relation To Other Rules. The Official Commentary to Rule 803 says that public records and reports that are not admissible under the Rule 803(8) exception are not admissible as business records under Rule 803(6). Whether this is in fact the law in North Carolina is not clear. See State v. Forte, 360 N.C. 427, 436 n.1 (2006) (assuming without deciding that this Commentary reflects the intent of the General Assembly). But see State v. Wise, 178 N.C. App. 154, 160 (2006) (not mentioning this commentary but stating: “there is no merit in defendant’s argument that Rule 803(6) is limited by Rule 803(8)”); State v. Lyles, 172 N.C. App. 323, 325 n.1 (2005) (citing a now discredited North Carolina Supreme Court case for the proposition that Rule 803(8) does not restrict Rule 803(6)).

Category: Evidence, Uncategorized | Tags: Evidence, exceptions, hearsay, public records, rule 803, rules of evidence

Hearsay Exceptions: Business Records

Posted on February 19, 2014 by Jessica Smith

Continuing my series on commonly used hearsay exceptions, we arrive, in this post, at the business records exception. This one comes up a lot in criminal cases. Here are the basics.

Covered Records. The exception applies to “a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses.” N.C. R. EVID. 803(6)

Made at or Near Time of the Event, Etc. The records must be made “at or near the time” of occurrence. N.C. R. EVID. 803(6). If the records themselves show that they were made then, they are self-authenticating in this regard. See, e.g., State v. Frierson, 153 N.C. App. 242, 247-48 (2002) (restaurant’s deposit slips and validation reports were self-authenticating). When the records aren’t dated, witness testimony can provide the required foundation. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse testified that medical records were created contemporaneously with victim’s care).

Knowledge. The record must have been made by or from information transmitted by “a person with knowledge.” N.C. R. EVID. 803(6); see, e.g., State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter intake form completed by the victim was admissible; it was completed at an employee’s direction, getting the form was regular shelter practice, and the employee saw the victim complete the form); see also State v. Marshall, 94 N.C. App. 20, 34 (1989) (information on a pretrial release record was completed by the defendant).

Made in the Regular Course of Business. The record must have been made in the course of a regularly conducted business activity, N.C. R. EVID. 803(6), such as a receipt given by a merchant to a purchaser at the time of sale, State v. Ligon, 332 N.C. 224, 232-34 (1992) (sales ticket), forms completed in connection with business transactions, State v. Holden, 321 N.C. 125, 143 (1987) (firearms form filled out at the time of sale), and bank deposit slips and statements. State v. Frierson, 153 N.C. App. 242, 247-48 (2002).

The exception isn’t limited to records created by what we typically think of as private businesses. The term “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. N.C. R. EVID. 803(6); State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter); State v. Tyler, 346 N.C. 187, 204-05 (1997) (hospital). Although it has been suggested that Rule 803(6) doesn’t cover government records, 2 Brandis & Broun on North Carolina Evidence at 886, case law suggests otherwise. See, e.g., State v. Sneed, 210 N.C. App. 622, 629 (2011) (NCIC database information indicating that gun was stolen); State v. Hewson, 182 N.C. App. 196, 207-08 (2007) (911 event report); State v. Wise, 178 N.C. App. 154, 160 (2006) (sex offender documents); see also State v. Windley, 173 N.C. App. 187, 193 (2005) (fingerprint card).

Lack of Trustworthiness. The exception doesn’t apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” N.C. R. EVID. 803(6); see generally State v. Galloway, 145 N.C. App. 555, 565-67 (2001) (doctor could not recall the source of the information in his report; records of a second doctor contained inconsistencies); State v. Agudelo, 89 N.C. App. 640, 645 (machine-produced telephone records were untrustworthy; the accuracy of the machine had not been verified and the witness had “no idea” when the machine was last checked for maintenance); State v. Brewington, 80 N.C. App. 42, 51-52 (1986) (telephone company records indicating that area payphones had placed collect calls to the defendant’s phone number were untrustworthy; accuracy of the records depended on the trustworthiness of a number provided by an unknown caller).

“Custodian” or Other “Qualified Witness.” The foundational requirements must be “shown by the testimony of the custodian or other qualified witness.” N.C. R. EVID. 803(6). The custodian can be the person who maintains the record for the entity or a person who has custody of the document; the custodian need not have been involved in the record’s creation. See, e.g., State v. Woods, 126 N.C. App. 581, 589-90 (1997) (foundation for hospital records laid by records custodian who was not involved in their creation).

In addition to a records custodian, the rule allows for the foundational requirements to be satisfied by some “other qualified person.” This can include the business owner, State v. Holden, 321 N.C. 125, 143 (1987) (gun shop owner laid foundation for firearms form completed by the defendant and a salesman), or someone who works at the entity that produced the records. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse who worked in the relevant trauma unit and was familiar with the records); State v. Mebane, 106 N.C. App. 516, 530 (1992) (foundation for a time card by company supervisor who was familiar with timecard records and procedures).

At least one North Carolina case suggests that a person who is neither a records custodian nor affiliated with the entity that created the document can be a “qualified witness.” State v. Sneed, 210 N.C. App. 622, 630-31 (2011) (no plain error when trial court held that foundation was laid for printouts from the National Crime Information Center database indicating that a gun in the defendant’s possession had been reported stolen by a detective who was not involved with entering items into the database but used it in his regular course of his business). However, litigants may not want to rely on a plain error case, particularly where other authority requires a tighter nexus between the witness and the entity that created the document. See, e.g., United States v. Porter, 821 F.2d 968, 977 (4th Cir. 1987) (error to allow company’s security officer to lay foundation for company employment records; officer was not the records custodian, did not work in the personnel department where such records were made, and he did not know the record keeping requirements of the company).

Finally, under G.S 8-44.1 and N.C. R. Civ. P. 45, which applies in criminal cases, G.S.15A-802; G.S. 8-61, the foundation for certain hospital medical records may be made by affidavit by the records custodian. See, e.g., State v. Woods, 126 N.C. App. 581, 589 (1997) (State offered medical records by presenting written affidavits/certifications from the custodian of the records).

Category: Evidence, Uncategorized | Tags: business records, Evidence, hearsay, hearsay exceptions, rule 803

Hearsay Exceptions: Recorded Recollection

Posted on February 18, 2014 by Jessica Smith

In a series of blog posts, I’ve been tackling the most common hearsay exceptions. This post focuses on the Rule 803(5) exception for recorded recollections. N.C. Rule 803(5) contains a hearsay exception for “[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”

A lot of folks confuse this hearsay exception with the technique of present recollection refreshed under Evidence Rule 612. Don’t do that! When a witness testifies that he or she cannot remember the matter in question, the proponent may have the witness review a document or item in order to refresh the witness’ memory. If reviewing the material sufficiently refreshes the witness’s recollection, the witness then testifies to the matter in question and no hearsay issues are presented. That is present recollection refreshed. When, however, the witness’ memory cannot be refreshed, the proponent may seek to introduce the contents of a memorandum or record created by the witness as a recorded recollection, and in lieu of the witness’ trial testimony. See, e.g., State v. Spinks, 136 N.C. App.153, 158 (1999) (State turned to this exception when unable to refresh the witness’ recollection). To be admissible as a recorded recollection, the contents of the memorandum or record must satisfy Rule 803(5). See generally State v. Harrison, __ N.C. App. __, 721 S.E.2d 371, 375-76 (2012) (explaining the distinction).

Want to get a statement in under the Rule 803(5) exception? Want to keep one out? Here are the foundational requirements.

Memorandum or Record. By its terms the exception applies to a “memorandum or record.” Case law says this includes audio recordings. State v. Wilson, 197 N.C. App. 154, 160 (2009).

Recollection of Having Made the Statement. The declarant must remember having made the statement. State v. Wilson, 197 N.C. App. 154, 160 (2009) (statement inadmissible when witness did not recall making the statement and because of her mental state testified that she was “liable to say anything”). Typically this is easily satisfied by the witness’s testimony to that effect. State v. Love, 156 N.C. App. 309, 315 (2003) (witness so testified). Note that this requirement is not applied rigidly. State v. Leggett, 135 N.C. App. 168, 173 (1999) (statement properly admitted where the witness testified that the statement “was in his handwriting and contained his signature, but he could not remember writing it”; the witness “further testified that, although he could not remember writing the statement, what he wrote was true”).

Insufficient Recollection of Contents. The rule requires that the witness have “insufficient recollection to enable him to testify fully and accurately” about the matter. N.C. R. EVID. 803(5); State v Harrison, __ N.C. App. __, 721 S.E.2d. 371, 375 (2012) (stating this requirement); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible where witness testified that she no longer had a sufficient recollection as to the matter). Where there is no showing that the witness has an insufficient recollection or where the evidence shows that the witness’s memory of the event is clear and complete, the exception does not apply. State v. Cummings, 361 N.C. 438, 475 (2007) (evidence showed that the witness’s memory was sufficient); State v. Alston, 161 N.C. App. 367, 371 (2003) (no showing that the defendant had an insufficient memory).

Witness Had Knowledge. The proponent must establish that the document pertains to matters about which the declarant once had knowledge. N.C. R. EVID. 803(5); see, e.g., State v. Love, 156 N.C. App. 309, 314 (2003).

Made or Adopted by Witness. The memorandum or record must have been made or adopted by the witness at the time. Note that it need not have been made by the witness, if it was examined and adopted by the witness. Compare State v. Love, 156 N.C. App. 309, 315 (2003) (victim adopted the statement), with State v. Spinks, 136 N.C. App. 153, 159 (1999) (this requirement was not satisfied when the witness testified that she signed the statement without having read it). If the statement was prepared by someone else, adoption doesn’t require the declarant’s signature. Love, 156 N.C. App. at 315 n.1 (victim’s recorded recollection given to police was admissible even though it was an unsigned computer printout).

Made When Memory Was Fresh. The memorandum or record must have been made or adopted when the matter was fresh in the witness’s memory. N.C. R. EVID. 803(5). There are no bright line rules as to the timing of the memorandum or report’s creation; the matter need only have been fresh in the witness’s memory when created. See State v. Nickerson, 320 N.C. 603, 607 (1987) (witness’s testimony established that the statement was adopted when the matter was fresh in the witness’ memory); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible when witness testified that she made the statement when the events of the night were “fresh in her mind”).

Accurate. The memorandum or record must correctly reflect the witness’s knowledge at the time. N.C. R.EVID. 803(5). Simply put, it must be accurate. Thus, in one case a statement was held inadmissible when the witness testified that because of her mental state at the time she was “liable to say anything.” State v. Wilson, 197 N.C. App. 154, 160 (2009); see also State v. Hollingsworth, 78 N.C. App. 578, 581 (1985) (statement inadmissible when witness testified that the letter did not correctly reflect her knowledge of the events and that the “whole letter [was] a lie”).

One final note about trial practice. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party. N.C. R. EVID. 803(5). The rationale for this is to “prevent a jury from giving too much weight to a written statement that cannot be effectively cross-examined.” State v. Spinks, 136 N.C. App. 153, 159 (1999) (citation omitted).

Category: Evidence | Tags: Evidence, hearsay, hearsay exceptions, recorded recollection, rule 803

Hearsay Exceptions: Then Existing Mental, Emotional, or Physical Condition

Posted on January 21, 2014 by Jessica Smith

I’ve previously blogged about hearsay exceptions for admissions by party-opponents (here), present sense impressions and excited utterances (here), and statements for purposes of medical diagnosis and treatment (here). In this post I’ll focus on the Rule 803(3) exception for statements of then existing mental, emotional, or physical condition. Remember that unlike the Rule 804 exceptions, the Rule 803 exceptions don’t require unavailability. N.C. Rule 803(3) provides a hearsay exception for statements “of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”

In criminal cases this exception often is used to admit a murder victim’s statement that he or she fears the defendant. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001); State v. Thibodeaux, 352 N.C. 570, 578 (2000); State v. Gary, 348 N.C. 510, 522 (1998). Such evidence typically is deemed relevant because it shows the status of the relationship between the defendant and the victim. See, e.g., Thibodeaux, 352 N.C. at 578. The victim need not expressly state his or her fear of the defendant for the statement to fall within this exception. In State v. Dawkins, 162 N.C. App. 231, 235 (2004), for example, the victim gave a witness photographs showing the victim with a black eye and told the witness to keep the photographs “and if anything should happen, to give them to the police.” The court held that although the statement itself contained “no express declaration of fear . . . the attendant circumstances [gave] context to the victim’s statement and clearly reflect the victim’s fearful state of mind.” In sexual assault cases, the victim’s statements indicating fear of the defendant have been held admissible under this exception and relevant to whether the activity was committed by force and against the victim’s will. State v. Locklear, 320 N.C. 754, 760 (1987).

Another common scenario when this exception arises is when a statement shows the declarant’s intent to engage in a future act. Consider the following statement made by a murder victim to a neighbor: “I’m not feeling well today. I am about to leave to spend the night at my boyfriend’s house so that he can keep an eye on me.” This statement could be admitted under the Rule 803(3) exception to establish circumstantially that the victim was at her boyfriend’s house on the night of her murder. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001) (in a murder case, the victim’s statements that she intended to go to court the next day to get a domestic violence protective order and restraining order were admissible as her then existing intent and plan to engage in a future act); State v. Braxton, 352 N.C. 158, 190-91 (2000) (a declarant’s statement that he was going to approach the defendant about straightening out the alleged debt owed by the victim was admissible under this rationale); State v. Coffey, 326 N.C. 268, 286 (1990) (statement by child murder victim that she was going fishing with a nice gray-haired man on the day she disappeared was admissible under this exception). When offered to show the declarant’s intent to engage in a future act, there is no temporal requirement between the statement and the act intended. State v. Taylor, 332 N.C. 372, 386-87 (1992).

Sometimes statements of emotion will be accompanied by factual statements. For example, the victim/declarant says: “I’m afraid of the defendant because he has beaten me up before.” The first part of the victim’s statement recounts an emotion and is admissible under the rule. The second part recounts a fact. A party may seek to exclude factual statements, like those in this example, arguing that the exception–by its terms–does not include a statement of memory or belief to prove the fact remembered or believed. N.C. R. Evid. 803(3). Notwithstanding the text of the Rule, the cases hold that statements of fact providing context or a basis for expressions of emotion are admissible under this exception. State v. Smith, 357 N.C. 604, 609-10 (2003); State v. Murillo, 349 N.C. 573, 588 (1998); State v. Alston, 341 N.C. 198, 229-30 (1995). These cases seem to stand for the proposition that factual statements made in isolation and unaccompanied by statements of emotion are inadmissible under Rule 803(3), but statements of fact that relate to an expression of emotion are admissible. While a useful guide, not all cases adhere to this general rule, suggesting that there is room for argument by the parties. See, e.g., State v. Cummings, 326 N.C. 298, 312-13 (1990) (victim/declarant’s statements recounting several occasions when the defendant had beaten her and that he had threatened to kill her if she tried to take back her children from him were admissible); State v. Gary, 348 N.C. 510, 521-22 (1998) (victim’s statement, “He told me he’d kill me if I left him” was admissible).

Category: Evidence, Uncategorized | Tags: hearsay, hearsay exceptions, rule 803

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