Thursday, July 1, 2010
Book 'Em Danno!: Court Of Appeals Of Indiana Notes That Police Records Created In Connection With Routine Booking Procedures Are Admissible Under Rule 803(8)
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.
Indiana Rule of Evidence 803(8) is somewhat different. It provides that
Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law [are admissible as an exception to the rule against hearsay. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
As the recent opinion of the Court of Appeals of Indiana in Fowler v. State, 2010 WL 2605034 (Ind.App. 2010), makes clear, however, Indiana courts look to federal case law and the law of other states concerning the meaning of 803(8), and the public records exception permits admission of police records created in connection with routine booking procedures.
Stacey [Fowler] and her husband Ricky Fowler got into an argument outside their home. Ricky called the police. Officers Nicole Bockting and David Shimp responded. Ricky identified himself verbally to the police officers. Ricky told the officers that Stacey had taken his wallet. At some point Stacey walked up to Ricky and pushed him with both hands. Ricky was knocked off-balance. The officers placed Stacey under arrest. Officer Shimp retrieved Ricky's wallet from Stacey's truck.
Stacey was later charged with misdemeanor battery, and, at trial,
To help establish the identity of the victim, the State introduced a certified Indianapolis Metropolitan Police Department "Booking Information" printout containing a mugshot of Ricky along with his name, date of birth, and physical description. Ricky evidently had been arrested in 2005 for an unrelated theft, so the police had his picture and personal information on file. The booking card stated on the bottom that it was "FOR LAW ENFORCEMENT USE ONLY."...The State asked Officer Shimp if he recognized the person in the 2005 booking photo. Officer Shimp responded, "That's the male half of the disturbance, Ricky Fowler."...The defense objected to the State's exhibit. The defense argued that the document was inadmissible hearsay and that its introduction violated Stacey's constitutional confrontation rights. The trial court admitted the exhibit over objection.
After she was convicted, Stacey appealed, restating her objections to the introduction of the "Booking Information." The Court of Appeals of Indiana first found that the "Booking Information" was admissible under Indiana Rule of Evidence 803(8). The court noted that this was a question of first impression in Indiana and that Indiana Rule of Evidence 803(8) is somewhat different than Federal Rule of Evidence 803(8) and many state counterparts. That said, the court found that "in the absence of our own case law on [an] issue, we may be informed by looking to federal case law and the law of other states concerning the meaning of 803(8)."
The court then noted that "[t]he public records exception still excludes investigative police reports when offered against the accused in criminal trials" and that
"[T]he 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."
Therefore, according to the court, "this exclusion does not bar admission of police records pertaining to “routine, ministerial, objective nonevaluative matters made in non-adversarial settings." The court then noted that based upon these reasoning, "courts have held that the public records exception permits admission of police records created in connection with routine booking procedures." And, because the court found that the "Booking Information" was such a record, it found it to be admissible under Indiana Rule of Evidence 803(8).
(The court also rejected Stacey's Confrontation Clause argument, finding that the "Booking Information" was non-testimonial).