Saturday, March 13, 2010
Court Of Public Opinion: Supreme Court Of Washington Holds Judicial Findings Inadmissible Under Public Records Exception
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.
It is well established that
Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: "A judge in a civil trial is not an investigator, rather a judge." Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).The advisory committee notes to Rule 803(8) also indicate that the intent of the rule's drafters was to allow for the admission of investigations by officials in the executive branch; there is no indication in those notes that the committee intended this exception to include findings of fact by judges. Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002).
Washington doesn't have a state counterpart to Federal Rule of Evidence 803(8), but it has recognized a public records exception to the rule against hearsay in its case law. And, in its recent opinion in In re Detention of Pouncy, 2010 WL 817369 (Wash. 2010), the Supreme Court of Washington found that this exception does not apply to judicial opinions.
In Pouncy, "[f]ollowing trial, a jury found Curtis Pouncy to be a sexually violent predator." Pouncy thereafter sought a new trial, "claiming that the trial court erred when it failed to instruct the jury on the definition of 'personality disorder' and when it allowed the State to impeach Pouncy's expert using judicial findings about the expert set forth in a previous, unrelated trial." The Supreme Court of Washington granted Pouncy a new trial on the former issue and found that the State should not be allowed to impeach Pouncy based upon the prior judicial findings at that new trial.
On this latter issue, the court noted that the prior judicial findings would not have qualified for admission under Federal Rule of Evidence 803(8) for the reasons listed above. The court then noted that it did not have a formal state counterpart to this federal rule but that it had adopted such a counterpart in its precedent. The court, though, still found that the judicial findings
constituted inadmissible hearsay. There is no question that the...judge's findings were out-of-court statements used to prove the truth of the matter asserted....Although the judge's findings of fact were contained in a certified public document, the document is not included under the public records exception to the hearsay rule. In order to qualify for the exception, the proffered document "'must contain facts and not conclusions involving the exercise of judgment or discretion or the expression of opinion.'" Despite their designation as findings of fact, the...judge's credibility determinations...involved a discretionary exercise not contemplated by the public records exception to the hearsay rule.
Moreover, the court found that even if these judicial findings were not hearsay, they failed to pass the Rule 403 balancing test because they were "irrelevant, unduly prejudicial..., and impinged upon the jury's role as the sole determiner of credibility."