Sunday, January 15, 2012
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
The theory behind this public records exception to the rule against hearsay is "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." What this makes clear is that the public records exception only covers statements made by public officials in public records, not statements made to public officials by non-public officials that are recorded in public records, as is made clear by the recent opinion of the United States District Court for the District of Puerto Rico in Echevarria v. Caribbean Aviation Maintenance Corp., 2012 WL 89839 (D.Puerto Rico 2012).In Echevarria, the plaintiffs filed an
action against Robinson Helicopter Co...., Caribbean Aviation Maintenance, Corp. and Chartis Insurance Company—Puerto Rico...for the events that led to the death of Diego Vidal Gonzalez....On November 12, 2008 a helicopter piloted by Jose A. Montano...and carrying Vidal Gonzalez suffered severe damage while attempting to land at the Fernando Luis Ribas Dominicci Airport. Vidal Gonzalez was rushed to the Rio Piedras Medical Center where he was treated for injuries. Vidal Gonzalez lapsed into a coma and died 59 days later. Through the various consolidated actions Vidal Gonzalez's widow and three children..., his son..., his father and sisters...brought suit against Defendants for damages, claiming it was the negligence of Defendants that led to the death of Vidal Gonzalez.
The National Transportation Safety Board conducted an investigation of the accident and prepared a report. Included in the report were statements made by the helicopter pilot to the NTSB investigator. Before trial, the defendants filed a motion in limine, seeking to preclude parts of the NTB report, including the parts that contained statements made by the helicopter pilot. The United States District Court for the District of Puerto Rico granted this portion of the motion in limine, finding that
“The Advisory Committee's Notes make clear that Federal Rule of Evidence 803(8) exempts from the hearsay rule only reports by officials; and of course the pilots and other witnesses are not officials for this purpose. Moreover, the memoranda submitted to the government by its investigators often contained statements from witnesses which would make such memoranda encompass double hearsay."...Reports that contain multiple statements of hearsay or double hearsay, even if written by an official, can be excluded based on the hearsay rule or through the trial court's discretion rooted in Rule 403.