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55. Should the court admit the statement from the report?
A plaintiff has brought a civil suit against a defendant for injuries arising out of a fistfight between them. The day after the fight, a police officer talked to the plaintiff, the defendant, and an eyewitness, and made an official police report. At trial, the plaintiff seeks to introduce from the properly authenticated police report a statement attributed to the eyewitness, who is unavailable to testify at trial, that «[the defendant] started the fight.»
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Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business; and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6).
Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth: (i) the activities of the office or agency; (ii) matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or (iii) in civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law. Fed. R. Evid. 803(8).
A present sense impression is a statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition. A present sense impression is admissible as an exception to the hearsay rule. Fed. R. Evid. 803(1).
B is correct. When an out-of-court statement is contained within another out-of-court statement, each individual statement must be admissible. Here, the eyewitness's statement is hearsay within the hearsay report. The report itself could be admissible as a business or public record, but the hearsay within it (the eyewitness statement) is admissible only if it satisfies a separate hearsay exception or if it can be shown that the eyewitness had a business or public duty to report the information accurately. The eyewitness had no such duty. The eyewitness's statement is also not a present sense impression, because it was made the day after the fight, and no other hearsay exception applies.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The statement is inadmissible hearsay even if the entire report is introduced; the eyewitness's statement is hearsay within the hearsay report. Although the report itself may be admissible as a business or public record, the hearsay statement within it is admissible only if it satisfies a separate hearsay exception or if the eyewitness had a business or public duty to report the information accurately, neither of which applies here.
C is incorrect. The fact that the eyewitness purported to have personal knowledge does not solve the hearsay problem, which arises because the eyewitness might not have told the truth about the event he supposedly saw and was not subject to cross-examination. The eyewitness's statement is hearsay within the hearsay report, admissible only if it satisfies a separate exception, which it does not.
D is incorrect. As explained above, although the police report was made by the officer within the course of his employment and does fall under the hearsay exception FRE 803(8), statements made by an eyewitness do not. Therefore, the hearsay within it is admissible only if it satisfies a separate hearsay exception, which it does not.