Saturday, January 16, 2010
Call The Police: Seventh Circuit Explains Rationale(s) For Excluding Police Reports In Criminal Cases Under Rule 803(8)(B)
Federal Rule of Evidence 803(8)(B) provides that
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.
In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.
In Hatfield, Rex Hatfield and Everly Hatfield were convicted of conspiracy to burglarize pharmacies and to distribute controlled substances (including morphine methadone, oxycodone, fentanyl, alprazolam, cocaine, and hydrocodone), the use of which resulted in death or serious bodily injury-specifically, four deaths, plus a serious bodily injury to a fifth user of the defendants' drugs. Based upon an improper jury instruction, the Seventh Circuit, in an opinion written by Judge Posner, reversed and remanded.
In addition to the jury instruction, the defendants also challenged other actions by the district court. Specifically, inter alia,
One of the dead was an informant in another case against one of the two defendants. That case was dismissed on motion by the prosecutor when the informant died. The government was permitted to present certified documents from that case, including a criminal complaint alleging that the defendant had sold oxycodone to the informant and an order dismissing the case because of the informant's death, to back up its argument that the defendants had planned to kill her in order to stop her from testifying.
The Seventh Circuit noted that this "evidence consisted of public records, which usually are admissible even though they are hearsay, Federal Rule of Evidence 803(8)." That said, the court acknowledged that "there is an exception for the use in criminal cases of records that set forth 'matters observed by police officers and other law enforcement personnel.' These are not admissible. Rule 803(8)(B)."
That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that
“The apparent concern of the drafters [of the exception in Rule 803(8)(B)] was that use of records in criminal cases would cause 'almost certain collision with confrontation rights.'"...And during floor debates on the rule, "concern was expressed that [without the exception, Rule 803(8)] would allow the introduction against the accused of a police officer's report without producing the officer as a witness subject to cross-examination."
If this were the only concern, the prosecution might not have faced a problem on remand because
[t]he police officer who had signed the criminal complaint in that case testified at the trial of the present case about the proceedings in that other case, including the allegations in the complaint that he had drafted. So he was available for cross-examination.
The problem for the prosecution, though, was that this was not the only concern. Instead,
there is more to the exception than a concern with unavailability of cross-examination. There is also a concern that reports by law enforcers are less reliable than reports by other public officials because of law enforcers' adversary relation to a defendant against whom the records are sought to be used.
In the end, though, the Seventh Circuit found that this wasn't a problem for the prosecution in the case before it
because the key document is the order dismissing the criminal complaint, and although it does mention the reason the prosecutor gave for asking the court to dismiss the complaint, the order is a public record of the court's reason (the informant's death) rather than a record of observations by law enforcement officers.