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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, November 18, 2011

Book 'Em Danno, Take 2: Court Of Appeals Of Colorado Finds Rule 803(8)(B) Doesn't Bar Admission Of Booking Reports

Similar to its federal counterpartColorado Rule of Evidence 803(8) provides an exception to the rule against hearsay for

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date 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.

So, let's say that the prosecution wants to introduce booking reports and a mittimus against a defendant. Are these documents admissible under Colorado Rule of Evidence 803(8)(A) or are they inadmissible under Colorado Rule of Evidence 803(8)(B)? According to the recent opinion of the Colorado Court of Appeals of Colorado, Div. VI in People v. Warrick, 2011 WL 5089464 (Colo.App. 2011), they're admissible.

In Warrick, the facts were as stated above, and the 

Defendant's booking reports list[ed] his basic biographical information, such as his age and date of birth, and his arrest dates. They also contain[ed] his booking photographs. The mittimus also include[d] defendant's date of birth along with information relating to defendant's prior conviction for conspiracy to commit robbery, including the statute under which he was convicted and the level of his offense.

The Colorado Court of Appeals of Colorado, Div. VI deemed these documents admissible under Colorado Rule of Evidence 803(8)(A), concluding

that the booking reports and the mittimus set forth the activities of the Arapahoe County Sheriff's Department and the Arapahoe County District Court, respectively.

But what about the fact that the documents ostensibly set forth "matters observed by police officers and other law enforcement personnel," which would make them inadmissible under Colorado Rule of Evidence 803(8)(B)? The court noted that no Colorado court had addressed this question before in a published opinion and found that it would rely on federal precedent to resolve the issue because of the similarity between Colorado Rule of Evidence 803(8) and its federal counterpart. The court then found that 

federal circuit courts have consistently and uniformly ruled that booking sheets and other similar documents are admissible under Fed.R.Evid. 803(8)(B). For example, in United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) [which I blogged about here], the court considered whether a police booking sheet was admissible under Fed.R.Evid. 803(8)(B). The court found that it was, concluding that "ministerial, non-adversarial information is admissible under Rule 803(8)(B)."... The court relied on the history of the rule's enactment, which made clear that the purpose of Rule 803(8)(B) was only to bar investigative reports prepared by the police for the prosecution of a specific defendant:

[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.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/11/booking-8038-people-v-warrick-p3d-2011-wl-5089464coloapp2011.html

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