EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 1, 2009

Check Your Speed: Hawai'i Court Finds Speed Check Card Was Properly Admitted At Speeding Trial

Federal Rule of Evidence 803(8)(B) (like most state counterparts) 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. 

What happens, though, when the prosecution seeks to present into evidence records of routine, nonadversarial matters made in a nonadversarial setting by police? There's a split among courts, with some finding that such records can be admitted as business records under Federal Rule of Evidence 803(6) because they are not the type of records intended to fall under Federal Rule of Evidence 803(8)(B)'s criminal trial exclusion and other courts applying the Rule's language to exclude such records. The recent opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fitzwater, 2009 WL 1112602 (Hawai'i App. 2009), reveals that Hawai'i courts fall in the former camp.

In Fitzwater, Zachariah Fitzwater appealed from his conviction for excessive speeding, claiming that the trial court improperly allowed the prosecution to introduce into evidence a speed check card. Now, some courts would have agreed with Fitzwater. For instance, in United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the Second Circuit found that a chemist's report and worksheet were inadmissible under Federal Rule of Evidence 803(8)(B) and that once a record/report is deemed inadmissible as a public record under Federal Rule of Evidence 803(8)(B), it cannot be "back-doored" into evidence as a business record under Rule 803(6)

(Most) other courts have disagreed, however, finding that Federal Rule of Evidence 803(8)(B) does not preclude the admission of "records of routine, nonadversarial matters made in a nonadversarial setting" by police under Rule 803(6). Underlying these courts' decisions is the Advisory Committee's Note to Federal Rule of Evidence 803(8)(B), which states in relevant part that the House  

excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. (emphasis added).

The Intermediate Court of Appeals of Hawai'i agreed with these other courts, finding that the speed check card was admissible as a business record under Hawai's version of Federal Rule of Evidence 803(6) because such cards are nonadversarial because  “the record-makers of speedometer calibrations have no motive to falsify the records."

The court also rejected Fitzwater's argument that admission of the speed check card violated his rights under the Confrontation Clause, and, well, if the Supreme Court ever decides Melende Diaz, we will see whether that ruling remains correct.



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