"Availability Immaterial—Public Records and Reports (FRE 803(8))"

Question 1

FRE 803 Hearsay Exceptions: Availability of Declarant Immaterial

Answer 1

The folloiwing are not excluded by the hearsay rule, even thought the decvlarant is available as a witness:

(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public
officers 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

“A. Statement and Application of the Rule:
1. If the officer/declarant is present and testifying at trial, giving opportunity for cross-examination, and id the report meets a different hearsay exception, the report may be admitted against a criminal defendant

2. Note that when the defendant wants to use the police report, defendant clearly has recourse to admission by a party opponent!
3. Documents Admissible under Part A—Records setting forth Activities of the Agency

           a.     Includes records of all public agencies
     
   b.     An example is records of the Treasury, to prove receipts and disbursements of that department, or the transcript of a judicial proceeding, to prove that an officer of the court administered an oath to a witness

4. Documents Admissible in Part B—Matters Observed Pursuant to Duty

    a.     Requirements:
     
              i)      Source of the record must  have personal knowledge
   
            ii)    Source must be under duty to report it

B. Inadmissible Documents under Part B

     1.     It would violate the principle and spirit of the Dennis Amendment to permit a document that is excluded under FRE 803(8)(B) to be brought in under one of the other hearsay exceptions

    2.     Structure of Police Records Rule

              a.     Exclusion (Hearsay rule)

              i)      Exception (Pub. Rec. Exception)"

Exclusion from Exception (police reports inadmissible under certain circumstances)

3. If police officer is not present at trial, court will probably not be able to use 803(1) PSI. This would violate
   the principle motivating the Dennis amendment.
4. If the police officer is available at trial for cross-examination, court will likely let the prosecution use the past
   recollection recorded exception or perhaps another hearsay exception.