Tuesday, January 5, 2010
Double Your Hearsay: Court Of Appeals Of Texas Uses Incorrect Reasoning To Reach Correct Conclusion That Police Report Was Properly Excluded
Texas Rule of Evidence 803(8) 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:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lac of trustworthiness.
As the Rule makes clear, police reports are inadmissible if offered by the prosecution against criminal defendants, but they are admissible if offered by criminal defendants against the prosecution. Nonetheless, in its recent opinion in Weiss v. State, 2009 WL 4757379 (Tex.App.-Fort Worth 2009), the Court of Appeals of Texas found that the trial court did not err in precluding a defendant from admitting a police report against the prosecution. I agree with the court's conclusion but disagree with its reasoning.
In Weiss, Alaa Mohamad Weiss and his wife Rania had been arguing over money for several days before Rainia called Weiss' sister
Majd and asked her to help the couple resolve their dispute. That afternoon, Rania went to Majd's house....As they aired their grievances, [Weiss] started cursing Rania's family. Rania objected to that and told him to stop. When he persisted, Rania arose from her chair, crossed the room and placed her bare foot on [Weiss]'s leg, which in their culture, signals disrespect. [Weiss] warned her to move away from him or he would hit her.When she refused to move away,...[Weiss]...stood, grabbed a remote control from the table, looked Rania in the eye, and struck her in the face with it.Rania's face went numb....Rania tried to call the police, but her in-laws took the telephone away from her.For the next two hours, Rania asked to go to the hospital, but was only given an ice pack and told that she was fine and that she didn't need to go. After she tried to leave on her own but swooned against the door, [Weiss] agreed to take her for medical attention, but instructed her to say that her daughter had hit her with a toy....When she arrived at the hospital, Rania was dizzy, weak, had trouble standing and talking, and her head and eyes hurt. The doctors diagnosed a concussion. [Weiss] told the doctor that Rania's daughter had hit her....The doctor ordered a shot and wanted her to wait at the hospital for thirty minutes, but [Weiss] insisted that she leave after the injection, so he took Rania back to his sister's house. Rania spent the night there but awoke early the next day, gathered her daughter, and drove home.On the way, Rania felt dizzy and couldn't see properly. Once she arrived home, she called a friend who drove her to the police station where she met with Arlington Police Officer Juan Williams. Officer Williams thought Rania appeared nervous, frightened, and shaken up. She told him she was in pain and felt dizzy. He was concerned that she might faint during the interview. After he took her report, Officer Williams gave her a ride home because she told him she was afraid [Weiss] might be there waiting for her and that he might retaliate against her for talking to the police.
Weiss was thereafter charged with "assault bodily injury on a family member," and at trial, he sought to admit Officer Williams' report of his conversation with Rania, claiming that the report contradicted the testimony of both Officer Williams and Rania at trial. The trial court, however, excluded this evidence, and the Court of Appeals of Texas subsequently affirmed.
The Court of Appeals did note that police reports are generally admissible against the prosecution but ultimately found that its
review of the report show[ed] that it does not consist of "factual findings resulting from an investigation," or the officer's opinions or conclusions based on such findings. To the contrary, the report is a recitation of statements made by Rania in reporting the offense. The trial court reasonably could have excluded the report as outside the scope of the hearsay exception set out in rule of evidence 803(8)(c).
I disagree with this reasoning. A report consisting of statements by the alleged victim is a statement consisting of factual findings no less than a report listing injuries on the alleged victim's body observed by a police officer. I really don't see how the court could have thought otherwise.
Nonetheless, I still think that the court reached the right conclusion because the report clearly contained hearsay within hearsay under Texas Rule of Evidence 806. The first layer of hearsay was the report itself, which, contrary to the court's conclusion, qualified for admission under Texas Rule of Evidence 803(8). The second layer of hearsay was the substance of that report: Rania's statements. I don't see how those statements would have qualified for admission under any hearsay exception, meaning that the Court of Appeals properly found that the report was inadmissible.