Thursday, February 18, 2010
Book 'Em Danno: First Circuit Finds That Booking Sheet Is Not Covered By Law Enforcement Exception In Rule 803(8)(B)
Federal 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, or (B) 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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Rule 803(8)(B) contains what is known as the "law enforcement exception," pursuant to which police reports are inadmissible in a criminal case when offered by the prosecution. But does this exception cover routine, non-adversarial documents, such as booking sheets? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Dowdell, 2010 WL 481416 (1st Cir. 2010).
In Dowdell, Darryl Dowdell was convicted of distribution of cocaine base. He thereafter appealed, claiming, inter alia, that the district court erred in admitting a booking sheet that contained the photograph of Dowdell in a blue checkered shirt on which an eyewitness based his identification of him and a textual description of Dowdell's clothing as including a "blue plaid shirt." The district court allowed for the admission of this booking sheet, finding that the law enforcement exception was not meant to encompass routine, non-adversarial documents.
On Dowdell's appeal, the First Circuit noted that this was a matter of first impression for it but that "those circuits to have considered the issue have all found that the limitation in Rule 803(8)(B) does not exclude routine observations that are inherently non-adversarial." The First Circuit then agreed with this courts, concluding that
Drawing a line at routine, non-adversarial documents would best comport with the purpose for which Congress originally approved the exception. The Rule's enactment history indicates that "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."...Congress was generally "concerned about prosecutors attempting to prove their cases in chief simply by putting into evidence police officers' reports of their contemporaneous observations of crime."
The court then found that the booking sheet was admissible under this reading of the law enforcement exception because
The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might. A booking sheet does not recount the work that led to an arrest so much as the mere fact that an arrest occurred. As a result, unlike the investigative reports that lie at the heart of the law enforcement exception, booking sheets raise little concern that suspicion of guilt will function as proof of guilt.