Tuesday, February 24, 2009
If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report
The recent opinion of the Court of Appeals of Kentucky in Adams v. Lexington-Fayette Urban County Government, 2009 WL 350600 (Ky.App. 2009), reveals that simply because third party hearsay is included in a public record or report does not mean that it is magically made admissible by the Public Record/Report exception to the rule against hearsay.
In Adams, John Henry Adams appealed a jury verdict in favor of the Lexington-Fayette Urban County Government (LFUCG) and against him after he sued LFUCG, claiming that he was discriminated against on the basis of race, age, and/or disability in violation of KRS 344 and subjected to unlawful retaliation as a direct consequence of his decision to seek the vindication of his civil rights in violation of KRS 344.280. The facts leading to Adams' lawsuit were as follows:
In 1981, Adams was hired as an employee of LFUCG and assigned to the Division of Building Maintenance and Construction (BMC) as a painter. Sometime later, Adams began experiencing what he believed to be racially-motivated abusive treatment by his supervisor, BMC Director Robert Clark. After Adams brought his concerns about Clark's abusive conduct to Julius Berry, an administrative aide to the mayor, Berry initiated an investigation of the BMC.
On September 7, 1994, Julius Berry issued a report, the "Berry Report," to Sam Dunn, a LFUCG employee, which documented numerous allegations of discriminatory acts committed by Clark against BMC employees, including claims of racism, favoritism, and cronyism. At the conclusion of the report, Berry recommended that Clark's employment be terminated for official misconduct.
At trial, Adams was able to introduce parts of the Berry Report into evidence pursuant to Kentucky Rule of Evidence 803(8), which provides a Public Record/Report exception to the rule against hearsay for
records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law...[u]nless the sources of information or other circumstances indicate lack of trustworthiness.
The trial court, however, precluded Adams from introducing those portions of the report which "contained quotes, statements, or opinions of third parties," and this ruling formed part of the basis for Adams' appeal.
The Court of Appeals of Kentucky, however, correctly rejected this argument on appeal, citing the Supreme Court of Kentucky's opinion in Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d 954 (Ky. 1997), for the proposition that:
"If a particular entry in the record would be inadmissible for another reason, it does not become admissible just because it is included in a business or public record...." Therefore, when a report contains statements by out-of-court declarants, the statements of these individuals are excluded as hearsay within hearsay, i.e., "double hearsay," unless each statement conforms with an exception to the hearsay rule (e.g., in a report, a doctor's statements of a declarant's statements made for the purpose of medical treatment or diagnosis would be admissible pursuant to KRE 803(4)).
Thus, according to the court of appeals, the trial court acted properly because "Adams did not offer any basis that the third party statements in question conformed to any of our recognized exceptions to the hearsay rule." This ruling makes sense because the purpose of the rule against hearsay is to exclude unreliable evidence. The Public Record/Report exception provides an exception to the rule against hearsay because it is generally expected that employees of a public agency will accurately and reliably record things in public records and reports. But there is no expectation that a private citizen making statements to such an employee will be accurate/reliable, which is why such third party statements are not admissible under the exception.