Tuesday, January 4, 2011
Semper Paratus?: Eleventh Circuit Finds Redacted Coast Guard Situation Report Admissible Despite Rule 803(8)(B)
Federal Rule of Evidence 803(8)(B) 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...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
In other words, police reports and similar reports are inadmissible against defendants in criminal cases and not covered by Rule 803(8)(B). That said, it is well established that documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency are precisely the type of reliable record envisioned by the drafters of Rule 803(8). This is why, for example, booking sheets are admissible under Rule 803(8)(B) despite its limiting language.
But what if the prosecution wants to introduce a report that would otherwise be inadmissible under Federal Rule of Evidence 803(8)(B) by redacting the report so that it is akin to a booking sheet or similar document? Would that redacted report be admissible under Rule 803(8)(B)? According to the recent opinion of the Eleventh Circuit in United States v. Reyes, 2010 WL 5297202 (11th Cir. 2010), the answer is "yes." I disagree.
In Reyes, Carlos Reyes was convicted by a jury of 29 counts of knowingly encouraging and inducing 29 aliens to enter the United States and one count of conspiring to encourage and induce aliens to enter the United States. At trial, the prosecution presented into evidence a Coast Guard situation report prepared from interviews taken of the Cuban nationals who were interdicted on the high seas.
After he was convicted, Reyes appealed, claiming, inter alia, that this report was admitted in violation of Federal Rule of Evidence 803(8)(B). The Eleventh Circuit disagreed, finding that
The entire situation report...was not introduced into evidence. The government stripped the situation report down to a bare list of the names of the aliens found in the water near the go-fast boat and the identification numbers assigned by the Coast Guard to keep track of those aliens during their detention on the Coast Guard vessel. The situation report in that redacted form is akin to information resulting from filling out a booking sheet and assigning a prisoner number to someone detained at a county jail. This Court has reasoned that such "documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency" are precisely the "type of reliable record envisioned by the drafters of Rule 803(8)."...
So, why do I disagree with the Eleventh Circuit? As I have noted before on this blog,
"[t]he public records exception...excludes investigative police reports when offered against the accused in criminal trials" and...
"[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."
This being the case, if the Coast Guard situation report were deemed adversarial, the entire report would be tainted by this adversarial nature, and the situation couldn't be cured by redacting portions of the report.