Public Records

In general

• One exception to the hearsay rule is for public records and reports.

Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied(quotation marks omitted)

• Rule 803(8) covers the admissibility of public records and reports.

Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000)

Exception to the rule against hearsay: Text

• The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . .

(8) Public Records.

(A) A record or statement of a public office if:

(i) it sets out:

(a) the office's regularly conducted and regularly recorded activities;

(b) a matter observed while under a legal duty to [observe and] report; or

(c) factual findings from a legally authorized investigation; and

(ii) neither the source of information nor other circumstances indicate a lack of trustworthiness.

(B) Notwithstanding subparagraph (A), the following are not excepted from the hearsay rule:

(i) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case;

(ii) investigative reports prepared by or for a public office, when offered by it in a case in which it is a party;

(iii) factual findings offered by the government in a criminal case; and

(iv) factual findings resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

Evid. R. 803(8)

Exception to the rule against hearsay: Interpretations of the text

• Rule 803(8) governing public records does not contain several of the foundational requirements for business records found in Rule 803(6).

Bailey v. State, 806 N.E.2d 329, 332 (Ind. Ct. App. 2004), trans. denied

D.B.M. v. Ind. Dep’t of Child Servs., 20 N.E.3d 174, 180 (Ind. Ct. App. 2014), trans. denied(“Notably, Rule 803(8) does not contain several of the foundational requirements for business records found in Rule 803(6).”)

• Rule 803(8) requires no affidavit or testimony from a records custodian or other qualified witness. Thus, [the defendant’s] arguments that Detective Golden of the [Indianapolis Housing Authority] police department was not the custodian of these records, or that he lacked personal knowledge of how their contents were created, are not applicable to Rule 803(8).

Bailey v. State, 806 N.E.2d 329, 332 (Ind. Ct. App. 2004), trans. denied

• For information about the business records exception to the rule against hearsay, please review Business Records.

• A document need not be open and available to the public in order to qualify for admission under the public records exception.

Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied(citing 2 Kenneth S. Broun, McCormick On Evidence § 295 (6th ed. 2006))

• What the rule requires—at least in part—is that the entity that created the record be a public office or agency.

Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied(citing Evid. R. 803(8))

• Contrary to the “matters observed” provision of Rule 803(8)[(A)(i)(b)], the exception for an agency's “regularly conducted and regularly recorded activities” does not require a statutory obligation to make the record.

Coates v. State, 650 N.E.2d 58, 63 (Ind. Ct. App. 1995), trans. denied

Exception to the rule against hearsay: Rationale

• The hearsay exception for public records “is based on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.”

Coates v. State, 650 N.E.2d 58, 63 (Ind. Ct. App. 1995), trans. denied(quoting 13 R. Miller, Indiana Practice § 803.108, at 652 (1995))

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)(citing Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied)(“This hearsay exception is based on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.”)

Bailey v. State, 806 N.E.2d 329, 332 (Ind. Ct. App. 2004), trans. denied(citing Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind. Ct. App. 2000))(“This hearsay exception is based on the assumption that public officials perform their duties properly and without motive or interest other than to submit accurate and fair reports.”)

Exclusions from the exception to the rule against hearsay: In general

• Rule 803(8)[(B)] defines four exclusions from the public records hearsay exceptions.

13 Robert Lowell Miller, Jr., Ind. Prac., Ind. Evidence § 803.108F (3d ed.)

• Our supreme court analyzed the “factual findings offered by the government in criminal cases” exclusion in depth in Ealy v. State, 685 N.E.2d 1047 (Ind.1997), and crafted a three-step test for determining the admissibility of hearsay under that subpart.

Rhone v. State, 825 N.E.2d 1277, 1283 (Ind. Ct. App. 2005), reh’g denied, trans. denied

• The Ealy test has since been extended to all of the exclusions listed in Rule 803(8).

Rhone v. State, 825 N.E.2d 1277, 1283 (Ind. Ct. App. 2005), reh’g denied, trans. denied(citing Shepherd v. State, 690 N.E.2d 318, 326 n. 2 (Ind. Ct. App. 1997), trans. denied)

See Dumes v. State, 718 N.E.2d 1171, 1190 n. 15 (Ind. Ct. App. 1999), clarified on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 1999)(citing Shepherd v. State, 690 N.E.2d 318, 326 n. 2 (Ind. Ct. App. 1997), trans. denied)(“Application of the Ealy test was subsequently expanded to subsection [(i)], [(ii)], and [(iv)] of Evidence Rule 803(8).”)

See also Bailey v. State, 806 N.E.2d 329, 333 n. 3 (Ind. Ct. App. 2004), trans. denied(“Ealy only specifically addressed whether an autopsy report was inadmissible under subpart [iii] of Rule 803[(B)] as a factual finding offered by the government in a criminal case. However, we concluded that Ealy's three-part test was applicable in determining whether a public agency report or record fell under subparts [i], [ii], and [iv], as well as subpart [iii].”)

Exclusions from the exception to the rule against hearsay: Three-step test for determining admissibility

• First, a court must determine whether the record or report contains findings that address a materially contested issue in the case. If the inquiry in the first step is answered in the negative, the analysis ends there and the record or report is not rendered inadmissible on hearsay grounds. Otherwise, the court must proceed to the second step, which requires the court to determine if the record or report contains factual findings. . . . If the record or report does contain factual findings, then the court must move on to step three and determine whether the report was prepared for advocacy purposes or in anticipation of litigation. If the report or record was prepared for advocacy purposes or in anticipation of litigation, then it is inadmissible hearsay.

Rhone v. State, 825 N.E.2d 1277, 1283-84 (Ind. Ct. App. 2005), reh’g denied, trans. denied(citing Ealy v. State, 685 N.E.2d 1047, 1054 (Ind.1997))

See Bailey v. State, 806 N.E.2d 329, 333 (Ind. Ct. App. 2004), trans. denied(citing Shepherd v. State, 690 N.E.2d 318, 326 (Ind. Ct. App. 1997), trans. denied)(“This court has adopted a three-part test for determining whether a record of a public agency constitutes an ‘investigative report’: 1) whether the report contains findings which address a materially contested issue in the case; 2) whether the record or report contains factual findings; and 3) whether the report was prepared for advocacy purposes or in anticipation of litigation.”)

• Even if the trial court determines that the record or report clears this final hurdle, the record or report may be inadmissible if it is not relevant or if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Rhone v. State, 825 N.E.2d 1277, 1284 (Ind. Ct. App. 2005), reh’g denied, trans. denied

Exclusions from the exception to the rule against hearsay: Definitions and interpretations of “factual findings”

• A “finding” is “[a] decision upon a question of fact reached as the result of a judicial examination or investigation by a court, jury, referee, coroner, etc.”

Ealy v. State, 685 N.E.2d 1047, 1051 (Ind. 1997)(quoting Black's Law Dictionary 569 (5th ed.1979))(alteration in the original)

• In other words, “a ‘finding’ or a ‘finding of fact’ refers to the result or conclusion drawn by an investigator, whether it be a fire inspector, judge, or jury, ‘from facts without exercise of legal judgment.’”

Ealy v. State, 685 N.E.2d 1047, 1051 (Ind. 1997)(quoting Rainey v. Beech Aircraft Corp., 827 F.2d 1498, 1510 (11th Cir.1987), aff’d in part, rev’d in part, 488 U.S. 153 (1988)(quoting Black's Law Dictionary 569 (5th ed.1979)))

See Rhone v. State, 825 N.E.2d 1277, 1284 (Ind. Ct. App. 2005), reh’g denied, trans. denied(citing Ealy v. State, 685 N.E.2d 1047, 1051 (Ind. 1997))(“Factual findings are conclusions drawn by an investigator from the facts.”)

• Judge Miller suggests that “[f]actual findings generally will consist of the product of an investigation that requires the preparer to make an inferential selection between possible truths.” This would be in contrast to an observation which would require “no subjective interpretation by public official that could taint trustworthiness.”

Ealy v. State, 685 N.E.2d 1047, 1051 (Ind. 1997)(quoting 13 R. Miller, Indiana Practice, Indiana Evidence 666 (1995))

• The several above approaches are good means of forming some conclusion as to whether something is a “factual finding.”

Ealy v. State, 685 N.E.2d 1047, 1051 (Ind. 1997)

• However, as the vagueness of the definitions suggests, any determination as to whether something is a factual finding would be difficult to make, highly subjective, and difficult to review.

Ealy v. State, 685 N.E.2d 1047, 1051-52 (Ind. 1997)

Exclusions from the exception to the rule against hearsay: Interpretation of “prepared for advocacy purposes or in anticipation of litigation”

• [W]e must determine whether the Affidavit for Probable Cause was prepared for advocacy purposes or in anticipation of litigation. We answer this . . . inquiry in the affirmative because the primary purposes of the Affidavit for Probable Cause are to set forth the facts upon which an arrest was made so that the court can determine the lawfulness of the arrest and to provide the State with the information needed to bring charges against the accused. Hence, the Affidavit was prepared for advocacy purposes.

Rhone v. State, 825 N.E.2d 1277, 1284 (Ind. Ct. App. 2005), reh’g denied, trans. denied

Investigative reports by police and other law enforcement personnel: In general

• [T]he public records exception to the hearsay rule expressly excludes investigative police reports when offered against the accused in criminal trials.

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)

Investigative reports by police and other law enforcement personnel: Rationale

• “The reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.”

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)(quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)

Perry v. State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011), reh’g denied(quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)

• The primary hearsay concern with such a report is that it may allow a trier of fact to draw conclusions from the statements made therein, which often contain the preparer's assumptions and personal interpretations of the events.

Tate v. State, 835 N.E.2d 499, 509 (Ind. Ct. App. 2005), trans. denied(citing Payne v. State, 658 N.E.2d 635, 646 n. 20 (Ind. Ct. App. 1995), trans. denied)

Investigative reports by police and other law enforcement personnel: Interpretation of “police and other law enforcement personnel”

• [T]he hearsay rules exclude “investigative reports by police and other law enforcement personnel” when offered against the accused in criminal cases.

Perry v. State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011), reh’g denied(quoting Evid. R. 803(8))

• However, we do not read “police and law enforcement personnel” to encompass treating physicians or nurses, even where such medical personnel may act in cooperation with law enforcement authorities.

Perry v. State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011), reh’g denied

Investigative reports by police and other law enforcement personnel: When offered by the accused

• The rule specifically excludes a police investigative report . . . unless it is offered by the accused in a criminal case.

Averitt Express, Inc. v. State ex rel. Indiana Dep't of Transp., 18 N.E.3d 608, 612 (Ind. Ct. App. 2014)

See Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing Evid. R. 803(8)(B)(i))(“[I]f that public record is a police investigative report, it is inadmissible unless offered by the defense.”)

See also Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000)(citing Evid. R. 803(8)(a)[recodified without substantive changes at 803(8)(B)(i)])(“When offered by the accused in a criminal case, investigative reports by police personnel fall within this exception.”)

Investigative reports by police and other law enforcement personnel: Routine, ministerial, objective nonevaluative matters made in non-adversarial settings

• [T]his exclusion does not bar admission of police records pertaining to “routine, ministerial, objective nonevaluative matters made in non-adversarial settings.”

Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)(quoting 30B Michael H. Graham, Federal Practice & Procedure § 7049 (Interim ed. 2006))

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)(quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)

• “Due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter . . ., such records are, like other public documents, inherently reliable.”

Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied(quoting United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.1985), reh’g denied)(alteration in the original)

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)(quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)(alteration in the original)

• Accordingly, courts have held that the public records exception permits admission of police records created in connection with routine booking procedures.

Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied

Allen v. State, 994 N.E.2d 316, 320 (Ind. Ct. App. 2013)(citing Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)

• “[T]he rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might.”

Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied(quoting United States v. Dowdell, 595 F.3d 50, 72 (1st Cir. 2010))

Allen v. State, 994 N.E.2d 316, 320-21 (Ind. Ct. App. 2013)(quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010), trans. denied)

Examples from case law

• [R]eturns of service are admissible under the public records exception of the hearsay rules.

Gaines v. State, 999 N.E.2d 999, 1004 (Ind. Ct. App. 2013)

• We further note for our discussion that the court docket and the charging information are items of public record which, pursuant to Evid. R. 803(8), would be admissible as exceptions to the hearsay rule at a proceeding where the rules of evidence are applicable.

Pitman v. State, 749 N.E.2d 557, 560 (Ind. Ct. App. 2001), reh’g denied, trans. denied

• Following Pitman, we conclude the trial court did not err in admitting into evidence the certified copy of the case chronology from case 236961.

Figures v. State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010)

• The remaining document, the police report, would not generally be admissible at proceedings other than those where the rules of evidence are not applicable.

Pitman v. State, 749 N.E.2d 557, 560 (Ind. Ct. App. 2001), reh’g denied, trans. denied

• The arrest report in Exhibit 21 merely includes biographical information and the type of charge to be brought against arrestee. Even though the public records exceptions does not allow certain police reports to be admitted against a defendant in a criminal trial, we find that this particular record does not contain any subjective assumptions, statements, interpretations, or conclusions; thus, the protective exclusions of Rule 803(8) are not applicable here.

Tate v. State, 835 N.E.2d 499, 509 (Ind. Ct. App. 2005), trans. denied

• Based on the foregoing analysis, we conclude that the Affidavit for Probable Cause constitutes inadmissible hearsay. Therefore, the trial court erred in admitting it into evidence.

Rhone v. State, 825 N.E.2d 1277, 1284 (Ind. Ct. App. 2005), reh’g denied, trans. denied

• Here, although the BMV is under a statutory duty to maintain records such as [the defendant’s] Official Driving Record and the Notice of Suspension mailed to him, we do not believe those records constitute “observations.” Rather, the BMV documents admitted as Exhibit 1 are a compilation of the BMV's “regularly conducted and regularly recorded activities” and, thus, fall within that hearsay exception in Rule 803(8).

Coates v. State, 650 N.E.2d 58, 63 (Ind. Ct. App. 1995), trans. denied(footnote omitted)(citations omitted)

Contra Kindel v. State, 649 N.E.2d 117, 119 (Ind. Ct. App. 1995)(“The determination of habitual violator in the BMV record is based exclusively upon matters observed pursuant to a duty imposed by law and as such is admissible pursuant to the hearsay exception found in Evid. R. 803(8).”)

• In conclusion, this autopsy report meets the admissibility requirements of Evid. R. 803(8) and is not made inadmissible by Evid. R. 803(8)(c)[recodified without substantive changes at Evid. R. 803(8)(B)(iii)].

Ealy v. State, 685 N.E.2d 1047, 1055 (Ind. 1997)