Hearsay and circumstances of its admissibility - Public reco...

Learning Outcomes

This article explains hearsay and circumstances of its admissibility for public records and reports, including:

• Pinpointing when a document qualifies as a “record or statement of a public office” and fits into one of the three FRE 803(8) categories.
• Distinguishing, with MBE-style precision, between activities-of-the-office records, matters observed under a duty to report, and factual findings from investigations.
• Evaluating trustworthiness and recognizing facts that allow an opponent to keep an otherwise qualifying public record out of evidence.
• Applying the special criminal-case limitations on law enforcement observations and investigative findings, and predicting how they affect the admissibility of police and agency reports.
• Differentiating public records from business records and other hearsay exceptions when an exam fact pattern could plausibly fit more than one doctrine.
• Integrating Confrontation Clause analysis with hearsay rules by spotting when a public record is testimonial and when the prosecution must call a live witness instead of relying on the document.
• Using structured issue-spotting steps to answer multiple-choice questions involving routine administrative records, police reports, and formal investigative findings quickly and accurately under exam time pressure.

MBE Syllabus

For the MBE, you are required to understand hearsay and its exceptions, including those for public records and official reports, with a focus on the following syllabus points:

• The scope and elements of the public records and reports exception under FRE 803(8).
• The admissibility of records of public offices: activities, matters observed under a duty, and factual findings from investigations.
• Special exclusions in criminal cases, including the law-enforcement-creation exclusion.
• Overlap and distinction between public records and business records (FRE 803(6)).
• The impact of the Confrontation Clause when the prosecution offers testimonial public records in criminal trials.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally admissible under the public records exception to hearsay?
   1. A police report of an officer’s observations in a criminal case offered by the prosecution.
   2. A certified copy of a city’s building inspection report in a civil negligence case.
   3. A statement of a bystander recorded in a police report.
   4. A business’s internal audit prepared for litigation.
2. In a criminal case, which type of public record is most likely to be excluded under the hearsay exception for public records?
   1. Records of routine administrative activities.
   2. Records of factual findings from a government investigation offered by the prosecution.
   3. Records of the defendant’s prior convictions.
   4. Records of the time a prisoner was released.
3. Which requirement must be met for a public record to be admissible under the hearsay exception?
   1. The record must be made by a private business.
   2. The record must be prepared in anticipation of litigation.
   3. The record must be made by a public office as part of its regularly conducted activities.
   4. The record must be based on statements from any source, regardless of duty.

Introduction

Hearsay is generally inadmissible unless it falls under an exclusion or exception. One of the most frequently tested exceptions is the public records and reports exception. On the MBE, this exception appears in both civil and criminal contexts, often in questions involving police reports, agency investigative reports, or routine government records.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.

The public records exception is codified in Federal Rule of Evidence 803(8). Unlike many hearsay exceptions, it applies regardless of the declarant’s availability and reflects a judgment that records produced by public offices in the course of their official duties have strong indicia of reliability.

Key Term: Public Records Exception
A hearsay exception that permits certain records, reports, statements, or data compilations of public offices to be admitted for their truth if they fall within defined categories and are sufficiently trustworthy.

Public records questions often require you to distinguish:

• Which part of the record is covered by the exception.
• Whether the record is admissible in a civil case but not in a criminal prosecution.
• Whether the record is both hearsay-admissible and consistent with the defendant’s Confrontation Clause rights.

Types of Public Records and Reports

FRE 803(8) recognizes three principal categories of admissible public records. A qualifying record or statement of a public office may be admitted if it sets out:

1. The office’s own activities.
2. Matters observed under a legal duty to report.
3. Factual findings from a legally authorized investigation.

Key Term: Record or Statement (Public Records)
Any written document, report, electronic data compilation, or similar recorded statement made or kept by a public office.

These categories correspond to FRE 803(8)(A)(i)–(iii):

• (A)(i) Activities of the office

  • Examples: payroll ledgers, licensing records, property tax rolls, motor-vehicle registration records, jail booking logs, time-of-release records.
  • These reflect what the agency did (issued a license, collected a tax, booked a prisoner).

• (A)(ii) Matters observed under a legal duty to report

  • Examples: routine safety inspections, building-code inspection reports, fire department run sheets, health department inspection logs.
  • Limit: In a criminal case, this category explicitly excludes “a matter observed by law-enforcement personnel” when offered against the defendant.

• (A)(iii) Factual findings from a legally authorized investigation

  • Examples: findings in an OSHA accident report, an NTSB report after an airplane crash, or a city engineer’s report on bridge collapse causes.
  • These “factual findings” include evaluative conclusions and opinions drawn from the investigation, not just raw facts.

Key Term: Factual Findings
The results, conclusions, or determinations made by a public agency in an official investigation, including evaluative opinions and ultimate conclusions.

Under FRE 803(8), these records are admissible in civil cases, and in criminal cases when offered against the government (e.g., by the defendant). When offered by the prosecution against the accused, important exclusions apply.

What Qualifies as a Public Record

To be admissible under the public records exception, the proponent must show:

• The item is a record, report, statement, or data compilation (including electronically stored information).
• It was made by, or from information transmitted by, a public office or agency.
• It sets out:
  • The office’s own activities; or
  • Matters observed under a legal duty to report (subject to the law-enforcement restriction in criminal cases); or
  • Factual findings from a legally authorized investigation (subject to the criminal-case limitation discussed below).
• The opponent does not show a lack of trustworthiness.

The record need not be “businesslike” in the private-sector sense, but it must arise from the official functions of a governmental unit.

Key Term: Trustworthiness (Public Records)
The requirement that a public record be excluded if the source of information or the method or circumstances of preparation indicate untrustworthiness, such as bias, inadequate investigation, or irregular procedures.

Examples of qualifying public records:

• DMV records showing a vehicle’s registration and ownership.
• A city building department’s certified inspection report.
• A prison’s intake or release log.
• A state health department’s report summarizing inspection findings at a restaurant.

Requirements for Admissibility

For a public record to be admissible under FRE 803(8), the following must be true:

• Made as part of regular activities:
  The record must be made or kept as part of the public office’s regularly conducted activities or pursuant to its legal duties. This is similar to—but not identical with—the business records requirement.

• Made by an official acting under a duty:
  The information must come from a public official (or someone acting under the official’s direction) who had a legal duty to observe, report, or investigate the matter.

• Timeliness and method consistent with reliability:
  The record should be made contemporaneously or shortly after the event, using regular methods. A report prepared only for litigation may be more vulnerable to a trustworthiness challenge.

• No showing of untrustworthiness:
  The burden is on the opponent to show that the record is untrustworthy—for example, because of:

  • An incomplete or biased investigation.
  • Insufficient knowledge or training.
  • Deviations from normal procedures.
  • Evidence of political pressure or manipulation.

If the court finds such concerns persuasive, it may exclude the record even if it technically fits one of the 803(8) categories.

Limitations in Criminal Cases

Public records are far more restricted when the prosecution offers them against an accused in a criminal case. Two separate limitations matter:

1. The law enforcement exclusion in FRE 803(8)(A)(ii)–(iii)
2. The Confrontation Clause

Under FRE 803(8):

• Law enforcement observations are excluded against the defendant.
  A record of “a matter observed by law-enforcement personnel” is not admissible under this exception when offered against the accused in a criminal case. This typically knocks out:
  • Police offense reports describing what officers saw at the scene.
  • Police narratives summarizing witness statements.
  • Investigative conclusions in a police report.

Key Term: Law Enforcement Exclusion
The rule that records of law enforcement observations and investigative findings are inadmissible against the accused in criminal cases under the public records exception.

• Factual findings from government investigations are also excluded against the defendant.
  Agency investigative reports (e.g., from a federal safety board) may be admissible against the government or in civil cases, but not when offered by the prosecution against the defendant in a criminal trial.

At the same time:

• Routine administrative records are generally admissible against a criminal defendant because they fall under “activities of the office,” not “law-enforcement observations.”
  Examples:
  • Jail booking records (height, weight, time of intake or release).
  • Fingerprint cards created during booking.
  • Docket entries showing the date of a prior conviction.

These describe what the agency did administratively, rather than the officers’ observations of criminal conduct.

Confrontation Clause and Testimonial Public Records

Even when a public record fits FRE 803(8), the Sixth Amendment may still bar its use in a criminal prosecution.

Key Term: Confrontation Clause
The Sixth Amendment right of a criminal defendant to confront and cross-examine witnesses against them; limits admission of testimonial hearsay offered by the prosecution.

Key Term: Testimonial Statement
An out-of-court statement made with the primary purpose of establishing or proving facts for use in a future criminal prosecution, such as a sworn certificate or a formal forensic report prepared for trial.

The Confrontation Clause analysis (in federal constitutional law) asks:

• Is the hearsay testimonial?
• Is it offered against the accused in a criminal case?
• Is the declarant unavailable, and did the defendant lack a prior opportunity to cross-examine the declarant?

If all three answers are “yes,” admission violates the Confrontation Clause unless the defendant forfeited the right by wrongdoing.

In practice:

• Routine, non-adversarial public records (e.g., jail intake logs, DMV records, birth certificates) are usually treated as non-testimonial and may be admitted if they meet FRE 803(8).
• Formally prepared forensic reports for trial (e.g., sworn drug-lab certificates identifying a substance) are often deemed testimonial. The prosecution typically must produce the analyst (or someone who can be cross-examined about the analysis), not just the report.

Thus, on the MBE you must check both hearsay rules and Confrontation Clause requirements in criminal cases.

Distinguishing Public Records from Other Exceptions

The MBE frequently tests your ability to distinguish among overlapping hearsay exceptions.

Key Term: Business Records Exception
A hearsay exception for records of acts, events, conditions, opinions, or diagnoses made in the regular course of a business or organization, including some public offices, if certain reliability requirements are met.

• Public Records vs Business Records (FRE 803(6))

  • Both require records made in the course of regularly conducted activities.
  • Public offices may qualify under either exception.
  • Key distinction on the exam: police reports in criminal cases:
    • As public records, they are barred against the accused because of the law enforcement exclusion.
    • As business records, courts are also reluctant to admit investigative police reports prepared in anticipation of prosecution.

• Police Reports

  • In civil cases, a police accident report may be admissible as:
    • A public record (factual findings of an investigation), or
    • A business record of the police department.
  • In criminal cases, when offered by the prosecution, the same report is generally inadmissible under FRE 803(8) and may be testimonial under the Confrontation Clause.

• Recorded Recollection, Present Sense Impression, Excited Utterance
  If a particular statement in a public record is not itself within 803(8), it may still come in under another exception, or not at all.

• Multiple Hearsay in Public Records
  A public record may contain several layers of statements.
  Each layer must be covered by an exception, or be offered for a non-hearsay purpose, to admit that layer for its truth.

Worked Example 1.1

A city health department investigates a restaurant after a food poisoning outbreak. The department prepares a report detailing its inspection, including factual findings about unsanitary conditions. In a civil suit by a customer against the restaurant, can the report be admitted for its truth?

Answer:
Yes. The report sets out factual findings from a legally authorized investigation by a public agency. In a civil case, such findings fall squarely within FRE 803(8)(A)(iii) and are admissible if the report appears trustworthy. The opponent could try to exclude it by showing bias or flawed methodology, but absent such a showing, the report is admissible as a public record.

Worked Example 1.2

In a criminal prosecution for assault, the prosecution offers a police report containing the officer’s observations at the scene. Is the report admissible under the public records exception?

Answer:
No. FRE 803(8) expressly excludes “matters observed by law-enforcement personnel” when offered against a criminal defendant. The officer must testify in person and be subject to cross-examination. The report itself, as a record of the officer’s observations, cannot be admitted against the accused under the public records exception.

Worked Example 1.3

In a criminal trial for escape, the prosecution offers a certified copy of the jail’s record showing that the defendant was released from custody at 8:00 a.m. on a particular date. The defense objects on hearsay grounds. Is the record admissible?

Answer:
Yes. The release log is a record of the jail’s own activities—the routine administrative act of releasing prisoners—and falls under FRE 803(8)(A)(i). It is not a law-enforcement observation of criminal activity. It is therefore admissible as a public record, assuming no showing of untrustworthiness. It is also typically non-testimonial, so the Confrontation Clause does not bar its admission.

Worked Example 1.4

A police accident report includes a paragraph stating: “According to Witness Brown, the defendant ran the red light.” In a civil suit, the plaintiff offers the report to prove that the defendant ran the red light. The defendant objects that Brown’s statement is hearsay within hearsay. How should the court rule?

Answer:
The court must analyze each hearsay layer separately. The report itself may be admissible as a public record of factual findings in a civil case. However, Brown’s statement inside the report is another layer of hearsay. That inner layer is not covered by the public records exception, because Brown had no duty to report. It is admissible only if it independently falls under another exception (e.g., present sense impression or excited utterance). If no such exception applies, the portion recounting Brown’s statement must be redacted or not considered for its truth.

Exam Warning

Police reports and investigative findings are often inadmissible against the accused in criminal cases, even if they would be admissible in civil cases. Do not confuse:

• Civil use of agency factual findings (often admissible), with
• Criminal use of law enforcement observations and investigative findings (often excluded and sometimes testimonial).

Revision Tip

When a public record is offered in a criminal case, ask sequentially:

• Is it an administrative record of the office’s own activities?
• Or is it a law-enforcement observation or investigative finding?
• If offered by the prosecution, is it testimonial?

If it is law-enforcement created and used by the prosecution against the accused, the public records exception likely does not apply, and the Confrontation Clause may independently bar admission.

Summary

• The public records exception (FRE 803(8)) covers certain records of public offices: activities, matters observed under a duty to report, and factual findings from authorized investigations.
• In civil cases, public agency investigative reports are often admissible, including evaluative factual findings, so long as they are trustworthy.
• In criminal cases, the exception does not allow:
  • Law enforcement observations, or
  • Government investigative factual findings
    when offered against the accused.
    Routine administrative records remain admissible.
• The trustworthiness requirement always applies; a judge may exclude a public record if the circumstances suggest unreliability.
• Public records can overlap with business records, but police investigative reports are generally disfavored under both exceptions when used by the prosecution in criminal trials.
• In criminal cases, you must separately check the Confrontation Clause: testimonial public records offered by the prosecution require that the declarant be available for cross-examination (or have been previously cross-examined).

Key Point Checklist

This article has covered the following key knowledge points:

• FRE 803(8) permits admission of public records that set out an office’s activities, matters observed under a duty to report, or factual findings from a legally authorized investigation.
• In criminal prosecutions, law enforcement observations and investigative findings are excluded under the public records exception when offered against the accused, but can often be used by the defense.
• Routine administrative records (e.g., booking logs, DMV files) are generally admissible as records of the office’s activities.
• All public records admitted under FRE 803(8) must be sufficiently trustworthy; the opponent may exclude them by showing bias, inadequate procedures, or other reliability concerns.
• Public records and business records share structural similarities but differ in their treatment of law enforcement documents, especially in criminal cases.
• The Confrontation Clause may independently bar admission of testimonial public records offered by the prosecution, even if they qualify under a hearsay exception.

Key Terms and Concepts

• Hearsay
• Public Records Exception
• Record or Statement (Public Records)
• Factual Findings
• Trustworthiness (Public Records)
• Law Enforcement Exclusion
• Confrontation Clause
• Testimonial Statement
• Business Records Exception