Monday, January 3, 2011
Lake Consequence: Supreme Court of Idaho Finds Witness Can't Testify About Factual Findings In Public Report
Idaho Rule of Evidence 803(8)(D) provides an exception to the rule against hearsay for
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. The following are not within this exception to the hearsay rule:
(D) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
And, as the recent opinion of the Supreme Court of Idaho in Kuhn v. Coldwell Banker Landmark, Inc., 2010 WL 5186683 (Idaho 2010), makes clear, a party cannot get around Rule 803(8)(D) by simply having the person who prepared the report testify himself regarding his factual findings.
Kuhn involved an appeal from a substantial jury verdict and judgment against appellants, arising out of a complicated real estate transaction. Les Lake was commissioned by the Idaho Real Estate Commission to investigate a complaint filed against the appellants and prepared a special investigation report created for the Idaho Real Estate Commission.
It was clear that this report was inadmissible under Idaho Rule of Evidence 803(8)(D), but the appellants claimed at trial that Lake should have been able to testify regarding his factual findings. The trial court, however, excluded this testimony, and, on the appellant's ensuing appeal, the Supreme Court of Idaho later affirmed, finding that
In this case, the [trial] court reasoned that if the special investigation report created for the Idaho Real Estate Commission was not admissible pursuant to 803(8)(D), then testimony by Lake regarding the same would also be inadmissible. Pursuant to our holding in Jeremiah, we find no abuse of discretion in the court's exclusion of Lake's testimony. While appellants argue Jeremiah is distinguishable because the director in Jeremiah did not actually conduct the investigation as Lake did in this case, this distinction ignores the plain holding of Jeremiah. The rule of that case properly focuses on what testimony encompasses the factual findings resulting from the special investigation, and does not focus on the person who is providing the testimony. Therefore, Jeremiah applies here and, consequently, the district court did not abuse its discretion in excluding Lake's testimony.