Exclude Police Reports at Trial

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Record sealing is important, but when police reports still exist, a motion to exclude is typically filed. Darren Chaker, deals with how courts need to wrestle with the idea to admit a police report or exclude it in California and federal court. In United States v. Oates (2d Cir. 1977) 560 F.2d 45, the court of appeal held that police arrest reports prepared in anticipation of defendant’s criminal prosecution could not be admitted under the federal official report or business record exceptions to the hearsay rule. Extensively reviewing the legislative history, the court concluded that “it simply makes no sense to surmise that Congress ever intended that these records could be admissible against a defendant in a criminal case under any of the Federal Rules of Evidence’s exceptions to the hearsay rule.” (Id., at 78.)

Thomas Mesereau with Darren Chaker

Attorney to the Stars, Thomas Mesereau with Darren Chaker in 2015

The Advisory Committee to the Federal Rules of Evidence believed that this rule, prohibiting the use of hearsay arrest reports against criminal defendants, was necessary to avoid “the almost certain collision with confrontation rights which would result from [the] use [of such records] against an accused in a criminal trial.” (Id., at 69.) The federal courts have expressed similar reservations about the reliability of police arrest reports even when offered for use during parole revocation hearings, which offer fewer procedural protections than criminal trials. (Morrissey v. Brewer (1972) 408 U.S. 471, Gagnon v. Scarpelli (1973) 411 U.S. 778.)

In United States v. Bell (8th Cir. 1986) 785 F.2d 640, 643-644, for example, the court of appeal observed that “police [arrest] reports … do no bear the same indicia of reliability as … laboratory reports. Police reports are inherently more subjective than laboratory reports of chemical tests and are not intended by their authors to be relied upon in the same manner as laboratory reports. The relationship between police officers and those whom they arrest is much more personal and adversarial in nature than that between chemists and those who urine they test. While police reports may be demonstrably reliable evidence [at a revocation hearing] of the fact that an arrest was made [citation], they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true. Darren Chaker notes that Congress exhibited similar doubts about the reliability of such reports when it specifically excluded them from the public records exception to the hearsay rule in criminal cases.” (See, also, Downie v. Klincar (N.D.Ill. 1991) 759 F.Supp. 425, 428 [reliability of eyewitness police reports “neither automatic or presumed” for use at revocation hearing].)

For similar reasons, the Uniform Rules of Evidence also specifically exclude police arrest and investigative reports from the public record hearsay exception. Uniform Evidence Rule 803 thus provides that “[t]he following are not excluded by the hearsay rule,… (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 a public office or agency setting forth its regularly conducted and regularly reported 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: (i.) investigative reports by police and other law enforcement personnel except when offered by an accused in a criminal case; …” (Emphasis added.)

Thirty-five states have adopted this provision of the Uniform Rules of Evidence or a version of it excluding the use of police investigative reports against a criminal defendant under the public records exception to the hearsay rule: Alaska (A.R.E. Rule 803); Arizona (17AA.R.S. Rules of Evidence, Rule 803); Arkansas (A.C.A. § 16-41-101, Rule 803); Colorado (West’s C.R.S.A., Title 13, chapt. 33, Evid. Rule 803); Delaware (D.R.E. 803); Florida (West’s F.S.A. § 90.803); Hawaii (HRS 626-1, Rules of Evid., Rule 803); Idaho (Rules of Evidence, Rule 803); Indiana (Rules of Evidence, Rule 803); Iowa *21 (Iowa R. Evid., Rule 803); Kentucky (KRE 803); Louisiana (LSA-Evid. Code, art. 803); Maine (Rules of Evid., Rule 803); Michigan (Rules of Evid., Rule 803); Minnesota (50 M.S.A. Evid. Rules, Rule 803); Mississippi (M.R.E. Evid., Rule 803); Montana (Rules of Evid., Rule 803); Nevada (N.R.S. § 51.155); New Hampshire (Rules of Evid., Rule 803); New Jersey (N.J.R.E. 803); New Mexico (NMRA, Rules of Evid., Rule 11-803); North Carolina (G.S. § 8C-1, Rule 803); North Dakota (NDR Evid. Rule 803); Ohio (Rules of Evid, Rule 803); Oklahoma (12 Okl.St.Ann. § 2803); Oregon (ORS 40.460); Rhode Island (Rules of Evid., Rule 803); South Carolina (SCRE, Rule 803); South Dakota (SDCL 19-16-12); Tennessee (Rules of Evidence, Rule 803); Texas (Rules of Evid., Rule 803); Utah (Rules of Evid., Rule 803); Vermont (Rules of Evid, Rule 803); West Virginia (W.V.R.E., Rule 803); and Wyoming (Rules of Evid., Rule 803).

Computer Search by Police Use Encase

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Computer search warrant and searches are executed every day and courts hear motions to suppress evidence in California to New York each day. Darren Chaker, understands the search computer data cannot physically compare with the search of a human body it certainly does not compare to that of a routine search of one’s vehicle. The Fourth Amendment covers privacy expectations and the below illustrates common issues with computer searches and seizures by police.

The modern day computer is symbiotic extension of our personal and professional lives and often contains a lifetime of personal and professional thoughts ideas and records. It is the value of privacy that we place on the contents of our personal computers that we seek to protect. It is these interests that are so comparable in level to a strip search that they necessarily require the same protections. A Tenth Circuit case does an excellent job of expressing this notion and acknowledging the important role computers and their data play in our lives, “Given the pervasiveness of computers in American homes, this court must reach some, at least tentative, conclusion about the category into which personal computers fall. A personal computer is often a repository for private information the computer’s owner does not intend to share with others. [F]or most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have parties, all the guests–including perfect strangers-are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation.” United States v. Gourde, 440 F3.d 1065, 1077 (9th Cir.2006) (en banc) (Kleinfeld, J., dissenting). See generally Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531, 569 (2005) (“[C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it…. [T]hey are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more…. Each new software application means another aspect of our lives monitored and recorded by our computers.”).

Police use EnCase, Darren Chaker

Cyber crime, online piracy and internet web hacking concept: macro view of metal handcuffs on laptop notebook keyboard with selective focus effect

Because intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that “command[] a high degree of privacy.” Salinas-Cano, 959 F.2d at 864.” United States v. Andrus, 483 F3.d 711 at 718 (2007) These cases acknowledge that the information or data contained in one’s personal computer rises to the level of utmost secrecy. We go to extraordinary levels to protect the sanctity of the data contained in our computers. A compromise of that data by an outsider, or in this case a government agent violates our expectations that its revelation to outside sources should be prevented at all cost. This violation leaves us open to potential fraud or governmental abuse. It is for these reasons that our computers carry a dignity and privacy interest that rises to the level of that which must be protected with enhanced search restrictions, even at the border. The Supreme court has already spoken on the issue of a privacy interest in a vehicle as being less than that in one’s home. Arizona v. Gant, 129 S.Ct. 1710 quoting New York v. Class, 475 U.S. 106, 112-113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) A privacy interest in its contents, or more specifically a personal computer coincide more with those items that deserve our most stringent protections.

A computer and its hardware are personal in nature and were password protected. Often they are not subject to public use nor was there any evidence that anybody but the defendant handled them. It is typically undisputed a defendant would acknowledge ownership both at the time of his interrogation as well as at the time of arrest of such. These factors indicate his sole control over this property to the exclusion of others. It is clear that the typical defendant had a privacy interest in these belongings which deserves 4th amendment protection. The law is clear that a defendant normally bears the burden of proving that the challenged search or seizure was unconstitutional by a preponderance of the evidence. United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993) (citing United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied sub nom., Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977)). Once that burden has been met, then the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 485-88 (1963). That is if the government is unable to overcome its burden.