Sunday, July 24, 2011
In Plain Sight? Colorado Court Fins Probation Records Qualify For Admission Under Public Records Exception To Hearsay Rule
Unless the sources of information or other circumstances indicate lack of trustworthiness, [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....
So, are probation records admissible under Rule 803(8)(B) or inadmissible under its criminal case restriction? According to the recent opinion of the Colorado Court of Appeals in People v. Gregg, 2011 WL 2899622 (Colo.App. 2011), they are admissible. But was the court correct that the plain language of the Rule compels this conclusion?In Gregg, William Allen Gregg was convicted of three counts of aggravated robbery and adjudicated as a habitual criminal. At trial to establish that Gregg was a habitual offender,
the prosecution presented the testimony of defendant's former probation officer and the documents she had received from California regarding defendant's conviction there....
The probation officer...testified that when she receives a request through the interstate compact, it includes a set of documents, which usually includes a request for supervision, a request for residence check, sentencing information from the state, presentence reports, complaints, and the court order requiring probation.
The documents included an "Order Granting Probation" from the Superior Court of California, County of Lake, filed on May 2, 2000, suspending defendant's sentence for "felony-burglary second degree" pending his completion of three years probation. The order states that the felony conviction resulted from defendant's guilty plea. The documents also included a California probation officer's report and recommendation, which identified defendant by his full name, date of birth, and Social Security number.
After he was convicted, Gregg, inter alia, appealed his adjudication as a habitual offender, claiming that the California documents were inadmissible hearsay. The Colorado Court of Appeals disagreed, first noting that "[a]s a general rule, the proponent of admitting a public record into evidence as an exception to the hearsay rule is not required to provide foundation testimony about the way in which the public record was generated or maintained" and that Gregg did "not allege that the authenticated probation order [wa]s factually inaccurate, and [that] there [wa]s no reason to believe that the source of the information, the Superior Court of Lake County, California, lacked trustworthiness or had any motive to falsify the order." Therefore, the court concluded that
the authenticated probation order is admissible under the CRE 803(8)(B) public records exception to the hearsay rule if the order sets forth matters the court observed "pursuant to duty imposed by law as to which matters there was a duty to report." "It is undisputed that sentencing a defendant is a duty imposed on the courts by law."...Under the plain language of the public records exception, the order is admissible. (emphasis added).
I have emphasized the last sentence in the court's opinion because I don't think it is correct. As noted, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay for public records
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....
Well, don't probation orders set forth matters observed by law enforcement personnel? Now, many courts have found that public records setting forth "routine and unambiguous matters" do not fall under the exception to Rule 803(8)(B), see, e.g., United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005), and this is seemingly what the Court of Appeals of Colorado did. But to say that the plain language of Rule 803(8)(B) allows for the admission of such records seems to me to be a misstatement of the law.