Monday, March 16, 2009
Back in January, I posted an entry that raised a hypothetical question about the interplay between Federal Rule of Evidence 803(8)(B) and Federal Rule of Evidence 803(10). Well, in its recent opinion in United States v. Harris, 2009 WL 614771 (8th Cir. 2009), the Eighth Circuit addressed that issue. And I think that it reached the wrong conclusion.
In Harris, Antonio Harris appealed from his conviction for possessing over fifty grams of cocaine base (crack) with intent to distribute it. One of the grounds for his appeal was that the district court
erred by allowing Julie Hancock, his probation officer at the time of trial, to testify to the contents of his probation file. During the trial, Mr. Harris, in an effort to establish that Detective Liston had planted the drugs seized in his apartment, testified that the detective had harassed him on three separate occasions and that he (Mr. Harris) notified Kelly Wilkins, who was his probation officer at the time, each time he had such an encounter as he was required to do. Ms. Hancock testified that Mr. Harris's probation file, which Ms. Wilkins maintained during the time period in question, did not contain any notations indicating that Mr. Harris had made any calls to Ms. Wilkins or notified her of any supposed harassment.
Harris argued that Hancock's testimony was inadmissible under Federal Rule of Evidence 803(8)(B), which provides an exception to the rule against hearsay for:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth... 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.
According to Harris, because Rule 803(8)(B) specifically retains the hearsay objection "in criminal cases" for "matters observed by police officers and other law enforcement personnel," the district court should have deemed Hancock's testimony inadmissible. The Eighth Circuit disagreed, concluding that:
803(8)(B) "does not bar the admission of all law enforcement agency records...." While it does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters....Ms. Hancock's testimony was offered for the purpose of ascertaining what Mr. Harris told Ms. Wilkins, something that involves a routine and unambiguous factual notation and not an opinion, a finding of fact, or a conclusion....Thus, even if Rule 803(8)(B) were applicable here, it would not bar Ms. Hancock's testimony.
But the Eighth Circuit noted that because Hancock was establishing the absence of a record of Harris' alleged calls, the Rule that applied was Federal Rule of Evidence 803(10), which states that:
To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
According to the court,
it is Fed.R.Evid. 803(10) that is relevant here because Ms. Hancock's testimony was not offered to show what was in Mr. Harris's file; it was offered to show what was not in it. Rule 803(10) allows for admission of testimony that "a diligent search failed to disclose [a] record" to prove the "nonexistence of a matter" where a record of such a matter would have been "regularly made and preserved by a public office or agency." Ms. Hancock testified, in part, that it was normal policy for probation officers to make an entry in a probationer's file for each contact with the probationer, and there were no notations in Mr. Harris's file indicating that Mr. Harris had contacted Ms. Wilkins. Ms. Hancock's testimony was therefore admissible to prove that Mr. Harris did not tell Ms. Williams about any alleged police harassment.
Now, it seems to me that this conclusion can be read in two ways. The first is that (a) Rule 803(8)(B) only covers reports/records that contain opinions or conclusions resulting from criminal investigations, so (b) Rule 803(10) only covers the absence of entries in reports/records that contain opinions or conclusions resulting from criminal investigations. If that's the case, I have no objection to the opinion.
But it seems to me that the Eighth Circuit reached the broader conclusion that there is no criminal case exception to Rule 803(10). And certainly, there is nothing in the language of Rule 803(10) that indicates that there is such an exception. Nonetheless, I see no good reason why there would be a criminal case exception to the public record/report Rule while there wouldn't be such an exception for the Rule covering the absence of entries in public records/reports. Indeed, is there really even any difference between the two Rules?