The Admission of Government Agency Reports Under Federal Rule of Evidence 803(8)(C) by John D
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The Admission of Government Agency Reports under Federal Rule of Evidence 803(8)(c) By John D. Winter and Adam P. Blumenkrantz or (B) matters observed pursuant having hearsay evidence admitted under to duty imposed by law as to which Rule 803(8)(c) follow from the justifica- matters there was a duty to report, tions for adopting the rule in the first excluding, however, in criminal cases place. The hearsay exception is premised matters observed by police officers on several conditions. First, the rule as- and other law enforcement person- sumes that government employees will nel, or (C) in civil actions . factual carry out their official duties in an honest 2 John D. Winter Adam P. Blumenkrantz findings resulting from an investiga- and thorough manner. This assump- tion made pursuant to authority tion results in the rule’s presumption of n product liability and other tort ac- granted by law, unless the sources of reliability. Second, the rule is based on the tions, plaintiffs may seek to introduce information or other circumstances government’s ability to investigate and re- Igovernment records or documents, indicate lack of trustworthiness. port on complex issues raised in many cas- federal and nonfederal alike, to establish es, from product liability claims to section one or more elements of their claims. In This article focuses specifically on 1983 actions against government officials. this regard, plaintiffs attempt to rely on the third prong of the rule: the use of Government agencies generally possess reports or letters written by government agency records in civil actions that result levels of expertise, resources, and experi- agencies responsible for overseeing the from an agency investigation made ence, including access to information that health, safety, and consumer aspects pursuant to authority granted by law. litigants cannot replicate. For example, of the product at issue in the particular Though the language of Rule 803(8) (c) an ordinary private litigant is unable to case. As the size of the administra- is broad and courts have generally match the Federal Aviation Administra- tive state grows, the number of agency interpreted the text in that manner, there tion in conducting an investigation of the records available for this purpose is are several recognized limitations to the details of an airplane accident at the crux increasing. Such reports and letters can exception. For several of the limitations, of a lawsuit between a crash victim and be portrayed as powerful and persuasive the precise boundaries remain unclear. the air carrier or airplane manufacturer.3 evidence when described as comprehen- Therefore, parties seeking to exclude Finally, assuming that in-court testimony sive and detailed descriptions of an ac- such records from being admitted into by a government employee would equal or cident, a product, or an event. Further, evidence should closely analyze each exceed in accuracy and detail that offered because such reports are prepared by of these requirements to determine the in a report, Rule 803(8)(c) removes the a government agency, a jury will likely most effective manner of challenging the burden on the government of having its give considerable deference to the con- admission of a government report. personnel required to testify at trial about clusions in these reports or letters. Ultimately, the party seeking to the contents of the report. Government agency reports fall prevent the admission of a government An obvious and significant hurdle to within the definition of hearsay set forth record bears the burden of establish- the admission of evidence pursuant to in Federal Rule of Evidence 801(c),1 ing that the report is not trustworthy Rule 803(8)(c) is that the report or docu- but because they are explicitly not or otherwise does not fall within Rule ment be trustworthy. For those seeking statements made by a declarant testify- 803(8) (c). In other words, there is a a narrow application of the rule, the reli- ing at a trial or hearing, Rule 803(8), “presumption of admissibility” that ability of the report and a jury’s ability to enacted by Congress in 1974, provides attaches to government reports, which evaluate that reliability are major con- an exception to this general prohibition the challenging party must overcome. cerns. The narrow interpretation of Rule on the admission of such statements. Not surprisingly, district courts have 803(8)(c) asserts that (a) agencies may not The “public records” exception, as it is significant discretion in deciding which possess the expertise or qualifications to commonly referred to, states that the reports may be admitted under the rule ensure that the report is comprehensive following items are not to be excluded and which may be excluded, so litigants and reliable; or (b) the report might be bi- by the general hearsay rule: should not count on successfully appeal- ased to protect the reporting agency, sister ing trial court evidentiary decisions. Ap- agencies, or the implicated private parties. Records, reports, statements, or data pellate courts rarely find that a district The notes of the Federal Rules of compilations, in any form, of public court has abused its discretion when Evidence Advisory Committee exhibit offices or agencies, setting forth (A) ruling on these types of matters. legitimate concern over the trustworthi- the activities of the office or agency, The requirements and contours for ness of agency reports. The committee American Bar Association 1 Spring 2009 Published in Mass Torts, Volume 7, Number 2, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. listed four nonexclusive factors that bear produced by nongovernmental bod- formal findings, only those factual state- on trustworthiness: (1) the timeliness of ies to prepare their own findings and ments from the staff reports that are ap- the investigation; (2) the special skill or conclusions. In most instances, the use proved and adopted will qualify as 803(8) experience of the official; (3) whether a of such information will not in and of (c) findings.’”11 Noting that Rule 803(8) hearing was held and the level at which it itself threaten the applicability of Rule is premised on an administrative body’s was conducted; and (4) possible motiva- 803(8) (c). Invariably, courts examine findings being “assumed to be trustwor- tion problems (such as agency bias or the reliability of the outside information thy,” the Ninth Circuit found that reports motivation issues) suggested by Palmer relied upon by the agency and assess not produced by an agency do not fall v. Hoffman.4 When a party opposing ad- whether the agency adopted the outside under the rule’s exception.12 missibility challenges the trustworthiness materials without comment or additional of a particular report, courts generally analysis or instead built on the third- Factual Finding versus Legal Conclusion start their analysis with these factors. party data and materials to reach its own On its face, Rule 803(8)(c)’s coverage In addition, courts have supplemented independent conclusions.6 If the out- appears limited to those records that con- these four factors with others, including side sources are reliable and the agency tain factual findings, as opposed to other whether the report in question is final thoughtfully considered the data in the types of statements. For many years, and the extent to which the investigation course of undertaking its own investiga- there was a split among the federal courts complied with agency procedures.5 How- tion, the reports are generally admitted as to whether Rule 803(8)(c) reached ever, given the factors that courts con- if the rule’s other requirements are met.7 opinion or evaluative statements or sider when assessing trustworthiness and For example, in Sabel v. Mead Johnson,8 conclusions contained in a government the discretion they are afforded on these a letter written by a division director at report, in addition to factual findings, issues, it is often difficult to predict what the U.S. Food and Drug Administration which were clearly covered. In Beech conclusion a court will reach regarding (FDA) prepared pursuant to the agency’s Aircraft Corp. v. Rainey,13 the Supreme the admissibility of a particular report. statutory authority was admitted despite Court resolved this question in favor of Although litigants and courts fre- the letter’s recommendations being based those who broadly interpreted the phrase quently focus attention on the question “factual finding.” The Supreme Court of trustworthiness when evaluating the concluded that the rule covered not applicability of Rule 803(8)(c) to a spe- Courts are hesitant to only factual findings resulting from an cific report, the rule’s other requirements agency’s investigation, but also opinions should not be overlooked. This article treat as factual findings or evaluative statements that followed discusses these additional requirements— statements in a draft report from the factual findings.14 This conclu- more specifically, the requirement that or mere recommendations sion was based on the language of the a government report contain “factual rule, which states that reports that set findings resulting from an investigation” directed to a full agency or forth factual findings, and not just the made by an agency. a third party. findings themselves, are admissible. In addition, the Supreme Court’s conclusion Factual Findings was based on the practical difficulties The requirement that a government report largely on data collected by and received of having to distinguish between factual contain “factual findings resulting from from an outside party.