Monday, August 30, 2010
Modern Hatfield & McCoy: Court Of Appeals Of Kentucky Notes Differences Between Rules 803(6) & (8) In Boundary Dispute
Like its federal counterpart, Kentucky Rule of Evidence 803(8) provides an exception to rule against hearsay for
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
And, like its federal counterpart, Kentucky Rule of Evidence 803(6) provides an exception to rule against hearsay for
Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or other 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:
(A) Investigative reports by police and other law enforcement personnel;
(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and
(C) Factual findings offered by the government in criminal cases.
And, as the recent opinion of the Court of Appeals of Kentucky in Owens v. Davies, 2010 WL 3360453 (Ky.App. 2010), makes clear, the foundation requirements under Rule 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in Rule 803(6).
In Davies, Donald Owens, Sr., Donald Owens, Jr., and Judy Owens appealed from a judgment in favor of Samuel E. Davies, Linda G. Davies, Andreae Collins, Ella Collins, Eleanor Grace, and William Grace quieting title to a disputed boundary line. After the trial court found against them, the Owens appealed, claiming, inter alia, that the court erred by
admitting the record of a prior condemnation proceeding involving the properties because the evidence constituted hearsay and was admitted without a proper foundation. Citing KRE 902(4), the trial court admitted into evidence a certified copy of the record of a prior condemnation proceeding involving the properties at issue in this case on the grounds that the record was public. The Kentucky Transportation Cabinet had instituted condemnation proceedings against adjoining landowners Speed Campbell and Ashley Garland prior to the relocation of U.S. Highway 25E. Appellee, Samuel Davies, in his capacity as an attorney, represented both Campbell and Garland in the proceeding against the Commonwealth. The condemnation proceeding established a boundary point between the properties of Campbell and Garland where their properties adjoin U.S. Highway 25E.
Ostensibly, the Owens claimed on appeal that the appellees failed to lay a proper foundation for admission of the record of the prior condemnation hearing because no witness authenticated the record. The Court of Appeals of Kentucky disagreed, finding that
the foundation requirements under KRE 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in KRE 803(6)....KRE 803(8) does not require the testimony of a live witness to satisfy the foundation requirement....
We conclude the record of the prior condemnation proceeding involving the properties at issue was properly admitted as a public record. KRE 902(4) states in pertinent part: "An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by an official having the legal custody of the record." The Knox County Circuit Clerk certified the record and attested the record was a "true and correct copy." The trial court did not abuse its discretion by admitting the record of the prior condemnation proceeding.