Document Type

Article

Publication Date

1983

Abstract

The hearsay exception for "public records" was recognized at common law and has been further developed in most jurisdictions by statute. The reliability of public records is said to derive from the presumption of regularity and accuracy that attends the recording of events by public officials. As with the hearsay exception for recordsmade in the regular course of a private business, the reliability of many public records is enhanced by the routine and repetitive circumstancesunder which such records are made. An additional justificationfor the admission of public records is public convenience: If government employees are continually required to testify in court with respect to matters they have witnessed or in which they have participated in the line of duty, the efficiency of public administration will suffer. It has also been observed that a public official's writtenreport of an event may be more reliable than his memory, as revealed through in-court testimony, because of the volume and repetitiousness of his work. As a result, there may be no appreciable benefit to the factfinding process by requiring the courtroom appearance and cross-examination of the public official. Accordingly, public records have generally been held admissible regardless of the public employee's availability to testify. If a report were prepared by government agents in anticiaption of a criminal prosecution, however, the foregoing assumptions concerning the inherent reliability of the report as evidence against the accused are subject to serious dispute because of the adversarial posture of the parties. Moreover, the use of such records in some cases may contravene the defendant's sixth amendment right to confront the witnesses against him. In enacting rule 803(8) of the Federal Rules of Evidence, Congress intended to minimize such problems by excluding from the public records exception, in respect to a criminal prosecution, reports of "matters observed by police officers and other law enforcement personnel and factual findings resulting from an investigation made pursuant to authority granted by law. Courts have not, however, reached a consensus as to the proper scope of the exclusions. In this regard, several significant interrelated issues have arisen. One problem is whether the exclusions should be given literal effect or whether some degree of flexibility may properly be read into the rule to permit admissibility in certain cases. A second problem is whether rule 803(8) exclusively governs the hearsay status of public records or whether admissibility may be premised on other hearsay exceptions. Additional issues include whether an objectionable report may be rendered admissible by the courtroom appearance of its author, and whether it may properly serve as the basis of an expert witness' trial testimony. This Article analyzes both the conceptual background and the legislative history of rule 803(8)'s exclusions in order to suggest the proper approach to these issues.

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