David R. Kott and Edward J. Fanning Jr. are partners in McCarter & English LLP's Product Liability Practice Group, and Jean P. Patterson is an associate in that group. They thank Logan E. Pettigrew, a third-year law student, for his assistance with this article.
The outcome of civil litigation often hinges upon the ability of litigants to rely upon or exclude public records and reports and, in particular, opinions contained in them. Federal Rule of Evidence 803(8) (“Rule 803(8)” or “Rule”) excludes from the hearsay rule certain investigative reports that set out “a matter observed while under a legal duty to report,” including “factual findings from a legally authorized investigation.” Fed. R. Evid. 803(8)(A)(i), (iii) (emphasis added).
Congress, in promulgating Rule 803(8) favored admissibility, citing the presumed “reliability of the public agencies usually conducting the investigation, and [the agencies] lack of any motive for conducting the studies other than to inform the public fairly and adequately.” Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618-19 (8th Cir. 1983) (emphasis added). Rule 803(8) further assumes that the public inspection to which many such records are subject will disclose inaccuracies. See Hickson Corp. v. Norfolk S. Ry. Co., 124 F. App'x 336, 344 (6th Cir. 2005) (discussing the Rule's policy assumptions); Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000) (same); Ellis v. Int'l Playtex Inc., 745 F.2d 292, 300 (4th Cir. 1984) (same).
Litigants invoke Rule 803(8) in a variety of civil cases to admit reports generated by federal, state, and local agencies.1 For example, courts have admitted Federal Aviation Administration “Airworthiness Directives” describing unsafe conditions in an aircraft and evaluating the likelihood that such conditions would develop in aircrafts of the same type design;2 gunshot residue experiments conducted by police officers on the defendants' weapons;3 “Morbidity and Mortality Weekly Reports” conducted by the Center for Disease Control investigating a link between toxic shock syndrome and tampon use;4 Surgeon General reports regarding the dangers of smoking, prepared by independent scientists;5 Coast Guard reports discussing the cause of a boating accident;6 and a fire department report analyzing the cause of a propane gas explosion.7
Admission of a public record or report pursuant to Rule 803(8) confers numerous benefits on its proponent, but may pose a serious threat to adversaries. First, although authors of public records may be “experts” in their respective fields, Rule 803(8) does not require any such qualification. Nor does the Rule require that a record's author be available for deposition or cross-examination.
While this low bar to admissibility may be inconsequential in some cases, it can prove problematic for an unwitting opponent, particularly where a record contains “evaluative” conclusions or value-based judgments, beyond the scope of presumptively trustworthy “factual findings.” See Fed. R. Evid. 803(8)(A)(i), (iii); Fed. R. Evid. 803 Advisory Committee's Notes (noting that “evaluative” reports and conclusions constitute the “more controversial area of public records”).
In light of the potential evidentiary value of public records, a comprehensive understanding of how to avail oneself of Rule 803(8), or conversely, how to exclude evidence offered under the Rule, is essential for attorneys in every area of trial practice.
This article will address the arguments for and against the admissibility of public records and reports containing evaluative conclusions and, in particular, the implications of Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579(1993), and other tests calculated to assess the reliability and trustworthiness of hearsay evidence.
Rule 803(8) permits admission of hearsay statements when properly incorporated into a “record or statement of a public office.” Fed. R. Evid. 803(8). Specifically, the Rule provides that a “record or statement of a public office” that “set outs … the office's activities” or “factual findings from a legally authorized investigation” is not excludable as hearsay, so long as “neither the source of information nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)(i), (iii), (B).
Courts interpret this language as an expression of congressional intent favoring admissibility and therefore hold that investigative reports encompassed within Rule 803(8) are presumed to be trustworthy.8 This presumption in favor of admissibility applies to both “factual findings” and “opinions” contained in public records. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
Despite the potentially significant evidentiary value of a public record, Rule 803(8) does not require that a record be made at or near the time of the event or kept in the regular course of business.9 Moreover, unlike the business records exception in Rule 803(6), Rule 803(8) does not require foundational testimony, and the unavailability of a report's author as a witness does not rebut the presumption of trustworthiness. See United States v. Doyle, 130 F.3d 523, 546 (2d Cir. 1997).
If the minimal technical requirements of Rule 803(8) are satisfied, the party opposing admission must make an affirmative showing of untrustworthiness in order to exclude the record. See Bradford Trust Co. v. Merrill Lynch,805 F.2d 49, 54 (2d Cir. 1986).
Despite the inclusivity of Rule 803(8), public records and reports are not per se admissible. Rule 803(8) contains an often-forgotten safeguard, which obligates trial courts to perform the common gatekeeping function of determining whether the factual predicate for the investigative report possesses the necessary indicia of trustworthiness. See Fed. R. Evid. 803(8)(B).
To be admissible, the evidence itself must be “substantively admissible[,]” by exhibiting a sufficient degree of reliability, trustworthiness, and relevance. See Berberena v. Pasquino, No. 03-557, 2006 BL 116502, *1 (S.D. Ill. Nov. 9, 2006) (quoting United States v. Sutton, 337 F.3d 792, 797-98 (7th Cir. 2003)).
The Advisory Committee's Notes identify four factors for consideration when determining trustworthiness under Rule 803(8): (1) the timeliness of the investigation, (2) the special skill or experience of the official, (3) whether a hearing was held and the level at which conducted, and (4) possible motivation problems. Fed. R. Evid. 803Advisory Committee's Notes; see also Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (questioning trustworthiness of a document prepared for litigation).
These non-exhaustive factors, however, represent only a narrow synthesis of the trustworthiness inquiry. Courts also consider factors such as: “[T]he manner in which the [public record] was completed, the sources of information utilized, the credentials of the person completing it, how the record was maintained[,]” and whether the report reflects the agency's desire to further preconceived policy objectives, giving rise to questions regarding the report's objectivity. See generally Blake v. Pellegrino, 329 F.3d 43 (1st Cir. 2003).10
Although courts will admit interim reports, the finality of factual findings in a public record or report is also relevant to the trustworthiness inquiry. Coleman v. Home Depot Inc., 306 F.3d 1333, 1342 n. 4 (3d Cir. 2002).11
Thus, in evaluating an investigative report, trial courts “must focus upon the … methodology of the report” and leave credibility decisions to the jury to “determine what weight to afford a report's finding.” Beavers v. Northrop Worldwide Aircraft Servs. Inc., 821 S.W.2d 669, 675 (Tex. App. 1991).
Although Rule 803(8) presumes admissibility in the first instance, the trustworthiness inquiry provides ample grounds for exclusion. See Beech Aircraft, 488 U.S. at 167-68 (discussing Rule 803(8)’s “ultimate safeguard”). Thus, despite the liberal interpretation of Rule 803(8) announced in Beech Aircraft, courts have demonstrated a willingness to exclude investigative reports based on a lack of trustworthiness.
In general, “material reflecting preliminary findings, or initial or tentative conclusions that are untested and not fully considered” do not constitute “factual findings” admissible under Rule 803(8)(C). 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence §8:89 (3d ed. 2009).
Based on this distinction, courts have excluded internal memoranda and reports by individual staff members, particularly when the documents were not adopted by the applicable government agency. See, e.g., Smith v. Isuzu Motors, Ltd., 137 F.3d 859 (5th Cir. 1998) (excluding internal memoranda written by individual staff members, which were not adopted by the government agency and were akin to preliminary or interim reports, because they did not constitute “factual findings” as contemplated by Rule 803(8)(C)); City of New York v. Pullman, Inc., 662 F.2d 910 (2d Cir. 1981) (excluding interim staff report and recommendation that did not reflect findings of agency); Brown v. Sierra Nev. Mem'l Miners Hosp., 849 F.2d 1186, 1189-90 (9th Cir. 1988) (finding that preliminary reports are not final determinations and therefore are not factual findings).
However, some courts have interpreted the Rule as permitting admission of inferences and evaluative conclusions contained in public records, which arguably exceed the scope of “factual findings.”12 See Fed. R. Evid. 803 Advisory Committee's Notes (noting disagreement among courts with regard to admissibility of “evaluative” reports and conclusions).
For example, the Supreme Court's opinion in Beech Aircraft Corp. v. Rainey, supports the admissibility of evaluative conclusions under Rule 803(8). There, the surviving spouses of pilots on an allegedly defective plane sought to exclude a Judge Advocate General's Report (“JAG Report”) produced six weeks after the accident.488 U.S. at 157.
The investigative report set forth an officer's “findings of fact,” “opinions,” and “recommendations,” including, among other things, aircraft conditions immediately preceding the accident, and a set of potential scenarios predicated upon “pilot error”—the basis for the defense's no-fault theory. Id.
Although the JAG Report contained conclusions based on scientific, technical, or other specialized knowledge, the court did not assess the reliability of those “expert” opinions. Rather, the court addressed only the issue of whether the opinions constituted “factual findings” admissible under Rule 803(8).13
Ultimately, the Court held that Rule 803(8) included opinions and other evaluative materials contained in government reports, “unless the sources of information or other circumstances indicate lack of trustworthiness.” Id.
The Court's ruling expanded the definition of “factual findings” in Rule 803(8), which federal courts previously held did not include opinions. Beech Aircraft thus opened the door to the relatively uncritical admission of a wide array of public records and reports that contain expert opinions and other evaluative conclusions involving scientific, technical, or other specialized knowledge—statements generally analyzed under Federal Rule of Evidence 702 (“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals. See Daubert, 509 U.S. 579 (1993). Litigants should be wary of this broad interpretation and be prepared to raise an objection.
A party opposing the admission of a public record may rely upon Daubert principles in an effort to exclude a public record, or parts thereof, where the record contains evaluative conclusions. See generally Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). That is, where a public record or report renders evaluative conclusions, sufficient authority exists to construe Rule 803(8) as requiring that the document satisfy Rule 702. See generally Fed. R. Evid. 803(8)(B).
Daubert articulates a multifactor analysis to assess the reliability of expert testimony, imposing a gatekeeping duty on trial judges to ensure that testimony based on scientific, technical or other specialized knowledge rests on a well-reasoned, reliable, and relevant foundation. 509 U.S. 579, 593-97; see also Fed. R. Evid. 702Advisory Committee's Notes.14
Due to the nature of the findings contained in some public records and reports, courts have entertained—and some have accepted—arguments regarding the applicability of Daubert in the Rule 803(8) context.15
In Desrosiers v. Flight Int'l of Florida Inc., the Ninth Circuit considered the admissibility Judge Advocate General's report (“JAG report”) setting forth findings of fact and opinions regarding the cause of an aircraft crash.156 F.3d 952, 961-62 (9th Cir. 1998). The Ninth Circuit, implicitly invoking Daubert's “gatekeeping” role, affirmed the district court's exclusion of significant portions of the JAG report deemed untrustworthy, holding that, “the district court's ‘gatekeeper’ role is not abrogated simply because the evidence falls under Rule 803(8)(C).” Id.Later, a district court in Arizona, citing Desrosiers for that proposition, found a technical manual regarding electrical power to automated data processing systems inadmissible under Rule 803(8). Heary Bros. Lightning Prot. Co. v. Lightning Prot. Inst., 287 F. Supp. 2d 1038, 1076 (D. Ariz. 2003), aff'd in part, rev'd in part on other grounds, 262 F. App'x 815 (9th Cir. 2008).
The inclusion of evaluative conclusions in a public record or report, beyond the scope of Rule 803(8)’s “factual findings,” may subject the record to additional scrutiny—and, as a result, potential exclusion—under Rule 702, Daubert, and its progeny.
The manual was offered in support of the party's contention that an alternative lighting protection system provided a measurable zone of protection that surpassed the conventional system, and could function effectively in open spaces. Id. at 175-76. The court implicitly concluded that the manual's “findings” exceeded the scope of Rule 803(8), and explicitly held the report inadmissible “to show conclusions reached by the author[,]” because the record lacked evidence regarding the author's scientific or technical expertise to support such conclusions. Id. (emphasis in original). The court further noted that a litigant “may not circumvent [the Daubert] requirement of offering scientific or technical evidence merely because” a government agency issued the disputed report. Id.
Similarly, in Berberena v. Pasquino, the U.S. District Court for the Southern District of Illinois, citing Daubert, found an internal affairs and Illinois state police investigations report inadmissible because the report referenced results of a polygraph tests. No. 03-557, 2006 BL 116502, *1-*2 (S.D. Ill. Nov. 9, 2006). As in Desrosiers and Heary, the court found the report inadmissible absent evidence regarding the reliability and methodology of the underlying investigation. Id.
As noted by one commentator, the inclusion of Daubert-like factors under the rubric of Rule 803(8)(B) reflects “the general sentiment that the proponent [of a public record containing an expert opinion] should not be better off by introducing the report instead of live testimony from an expert.” McCarthy, supra note 13, at 942 (internal quotations omitted).
In light of the foregoing, the inclusion of evaluative conclusions in a public record or report, beyond the scope of Rule 803(8)’s “factual findings,” may subject the record to additional scrutiny—and, as a result, potential exclusion—under Rule 702, Daubert, and its progeny.
In United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006), the Second Circuit noted that “Rule 803(8) excludes documents prepared for the ultimate purpose of litigation,” but nonetheless concluded that autopsy reports bear sufficient indicia of reliability by virtue of “the routine and repetitive circumstances” under which they are made and “the fact … [the reports] are made contemporaneously with the report itself.” Id. (quoting United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993).
Reports “prepared in contemplation of litigation” or in “a uniquely litigious … environment” or by an official with inherent motive to lie, are often excluded.
Similarly, in King v. Town of Wallkill, 302 F. Supp. 2d 279, 299 (S.D.N.Y. 2004), the district court considered whether a letter written by defense counsel, and proffered as evidence of the plaintiff's damages, fell within the confines of Rule 803(8).
The King court held that, “[e]ven if considered a public record of the Town for purposes of the [Rule 803(8)] public records exception, the letter was prepared in contemplation of the present litigation and therefore remains inadmissible.” Id. The court reasoned that Rule 803(8) allows the admission of public records that would otherwise constitute hearsay, because of an assumption that government employees are generally reliable and non-biased; however, the basis for that assumption of trustworthiness vanishes where the investigative reports was prepared in connection with litigation. See King, 302 F. Supp. 2d at 299; but see Fair Hous. Ctr. of S.W. Mich. v. Hunt, No. 1:09-cv-593, 2011 BL 46905 (W.D. Mich. Feb. 23, 2011) (holding that a report and compilation of housing data pertaining to the general market and tenant population at issue provided to a CPA, in part, by the defendants for comparison purposes would be admissible under Rule 803(8)).
By contrast, the Seventh Circuit, in addressing the admissibility of government expense records detailing the clean up costs for an oil spill, concluded that “[a]lthough some supplementary documents … were prepared especially for use in this litigation, they remain reports of public activities … . Because these document come within both the letter and the spirit of Rule 803(8) (founded as it is on a belief that public employees are generally reliable) … they [are] admissible.” See In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1308 (7th Cir. 1992).
When properly raised, courts have readily excluded evidence otherwise admissible under Rule 803(8) on Rule 403 grounds. See, e.g., Paolitto v. John Brown E. & C. Inc., 151 F.3d 60 (2d Cir. 1998) (affirming the exclusion of a state agency's findings and investigative file under Rule 403 despite the availability of the Rule 803(8) exception where many of the agency's findings were undercut by plaintiff's evidence); Hall v. W. Prod. Co., 988 F.2d 1050, 1058 (10th Cir. 1993) (affirming district court's refusal to admit an agency report under Rule 403, despite the applicability of Rule 803(8), where evidence in the report was also presented to the jury and “the only purpose to be served by admitting” the agency report into evidence “would be to suggest to the jury that it should reach the same conclusion as” the agency); United States v. Sutton, 337 F.3d 792, 797-98 (7th Cir. 2003) (affirming the district court's exclusion under Rule 403 of fingerprint reports contained in a Rule 803(8) public record without explanatory testimony of an expert witness).
An investigative report may also be objectionable under Federal Rule of Evidence 602, which requires that the reporting agency “have firsthand knowledge of the investigation by which it accumulates the published factual findings that Rule 803(8)(C) contemplates, since it is the quality of the investigation that determines the caliber of the results.” Robbins v. Whelan, 653 F.2d 47, 52 (1st Cir. 1981) (admitting a vehicle safety performance report); see also Fed. R. Evid. 602 (“[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”)
If seeking to exclude a public record or report, counsel should rely on Rule 803(8)’s trustworthiness requirement, as well as the standards set forth in other Federal Rules of Evidence relating to relevancy, undue prejudice, and expert testimony.
If attempting to admit a public record or report, the Supreme Court's broad interpretation of Rule 803(8) provides litigants with great latitude. However, proffering parties should be mindful of the policies underlying Rule 803(8) and courts' reluctance to admit records prepared in anticipation of litigation.
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