Sunday, August 15, 2010
Hearsay Within Hearsay: Supreme Court of South Dakota Offers Two Ways to Introduce Double Hearsay From Police Reports
Of all the gin joints, in all the towns, in all the world, Rusty Johnson chose the wrong bar in Marvin, South Dakota. From the ensuing police report, it appears that Johnson "used to go with" the girlfriend of Cory O’Farrell, a bar employee, and O’Farrell made clear that Johnson was not welcome. See Johnson v. O'Farrell, --- N.W.2d ----, 2010 WL 3172275 (S.D. Aug. 11, 2010), at ¶8. O'Farrell may have then "'tackled' Johnson from behind and threw him across the bar into a wall." Id. at ¶3. Then again, perhaps through no fault of O'Farrell's, "Johnson 'lost his balance,' hit the wall, and fell." Id. Either way, Johnson ended up with a broken leg. Id. at ¶10 n.2.
Cory O'Farrell and his employer (Kela O'Farrell, the bar owner and Cory O'Farrell's husband[FN1]) testified in support of the "lost his balance" theory. Johnson, as might be expected, pressed the "threw him across the bar" theory. At issue on appeal was whether the trial judge properly admitted a police report taken by a Grant County deputy sheriff on the night Johnson broke his leg. Like police reports generally, the sheriff report at issue is hearsay, and it contained an additional level of hearsay in the form of statements by Cory and Kela O'Farrell written down by the deputy sheriff. In the majority opinion and a separate concurrence, justices of the Supreme Court of South Dakota offered two methods for properly admitting the O'Farrells' statements into evidence.
The key portion of the police report said this:
This officer asked the bartender [Kela] what took place. She stated that Cory O’Farrell walked over to Rusty Johnson and told him to leave the bar. She stated the next thing she saw, Cory O’Farrell had thrown Rusty against the wall. She stated that Rusty fell on the floor. ... This Officer asked [Cory] what started the fight. [Cory] stated that Rusty used to go with his girlfriend, and he didn’t want him in the bar. [Cory] stated that he did throw him, but he didn’t know [how] he got hurt.
Id. at ¶5. The court promptly rejected the reasoning used by the trial judge to admit the report while noting that "admitting evidence on an incorrect ground will be affirmed if the evidence was admissible on a different ground." Id. at ¶12. The majority opinion then held that the statements were admissible using a combination of Rule 803(6), codified at SDCL 19-16-10, and Rule 801(d)(2)(1), codified at SDCL 19-16-3. Rule 803(6) provides that:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4 [Rule 802, barring most hearsay], even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Quoting the advisory committee note for Federal Rule of Evidence 803(6), the court held that "where the technical requirements of Rule 803(6) are met, a police report is admissible as a business record at the reporter level, as distinguished from the witness level." In other words, the officer's observations are admissible but statements of others contained in a report are inadmissible hearsay unless themselves covered by an exception to the hearsay rule. Id. at ¶20-¶21.
Enter Rule 801(d)(2), which defines party admissions as "not hearsay." Under Rule 801(d)(2)(1), a party's "own statement, in either his individual or a representative capacity" is not hearsay. (The analogous federal rule is at 801(d)(2)(A).) Because the witnesses whose statements appear in the police reports were the defendants, the statements were party admissions contained in a business record. Accordingly, they were properly admitted even though the deputy sheriff did not testify at trial. Id. at ¶22 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 801.30 (2d ed 2009) ("One type of '[p]arty admission[ ] commonly admitted into evidence include[s] a defendant's statements to police[.]'")).
In a concurring opinion, two justices suggested that the initial hearsay hurdle (that is, admitting the police report) could have been cleared by using Rule 803(8), codified at SDCL 19-16-12 (concerning public records and reports), instead of the business records exception. Johnson, ¶28-¶32. Rule 803(8)(3) provides that:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... [i]n civil actions and proceedings ..., factual findings resulting from an investigation made pursuant to authority granted by law, are not excluded by § 19-16-4 [Rule 802, barring most hearsay], even though the declarant is available as a witness, unless the sources of information or other circumstances indicate lack of trustworthiness.
Noting that "[o]ther jurisdictions have used a similar rule in admitting information from police reports in civil cases," the concurrence observed:
Although [the police] report contains hearsay, the relevant portion... would have been admissible under ... (Rule 803(8))'s exception because: (1) The report was from a public office, i.e. the Grant County Sheriff's Office, and [the deputy sheriff] was acting within his authority as a Deputy Sheriff; (2) The report sets "forth ... factual findings resulting from an investigation made pursuant to authority granted by law"; (3) The report was offered in a civil action; and, (4) "[T]he source of information or other circumstances [did not] indicate [a] lack of trustworthiness."
Were Rule 803(8) used to justify the initial admission of the report as a public record, analysis of the technical requirements of the business records exception (e.g., that the record was "kept in the course of a regularly conducted business activity, and [that] it was the regular practice of that business activity to make the memorandum, report, record, or data compilation") could be avoided.
FN1. The opinion does not explain how Cory O'Farrell is married to his employer, Kela O'Farrell, and concurrently has a "girlfriend."↩