Exclude Police Reports at Trial

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).