The Admissibility of Opinions Contained in Public Records

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...