Public records and second-tier exceptions

Public Records: Sort the Office’s Route

Rule 803(8) admits certain records and statements of public offices, while Rule 803(10) addresses proof that a public record is absent. The decisive questions are not simply whether a government employee created the document or whether it looks official. Ask what the office recorded, why it recorded it, what kind of case is pending, and whether the source and circumstances are trustworthy.

Under Rule 803(8), a record or statement of a public office is admissible if it satisfies one of three routes:

1. Office activities: It sets out the activities of the office.

2. Matters observed under a legal duty to report: It sets out a matter observed while under a legal duty to report. In a criminal case, however, this route does not include matters observed by law-enforcement personnel.

3. Investigative factual findings: In a civil case, or against the government in a criminal case, it contains factual findings from a legally authorized investigation.

For every route, Rule 803(8)(B) requires that neither the source of information nor other circumstances indicate a lack of trustworthiness. The court therefore examines the basis of the information, the investigator’s opportunity and motive to observe accurately, the method of investigation, and circumstances suggesting bias or unreliability. A public-office label does not eliminate this inquiry.

The case and content limits are easy to confuse:

A police report illustrates the sorting problem. A report of the department’s own activities-such as the date of an arrest or transfer of custody-may fit Rule 803(8)(A)(i). A report of what an officer observed at a crime scene is different: in a criminal case, Rule 803(8)(A)(ii) bars that law-enforcement observation route. Investigative findings under Rule 803(8)(A)(iii) are available in a civil case or against the government in a criminal case, but not ordinarily when the prosecution offers findings against a criminal defendant.

The report must also be a record or statement of a public office. A private company’s report filed with an agency is not automatically transformed into a public-office record. And an employee’s statement outside the office’s reporting function does not become admissible merely because the employee works for the government.

A report may contain multiple hearsay layers. Rule 803(8) can address the report itself, but it does not automatically admit an embedded statement by a civilian, informant, or private laboratory. Under Rule 805, each hearsay layer must independently satisfy an exception or be nonhearsay.

Rule 803(10) is the separate absence route. It permits evidence that a diligent search failed to disclose a public record or statement when:

1. The office regularly kept records or statements about the matter;
2. A diligent search failed to find the record or statement;
3. Neither the source nor other circumstances indicate untrustworthiness; and
4. The evidence is offered to prove that the matter did not occur or exist.

The proof may come through testimony or a certification complying with Rule 902. “The file contains nothing” is insufficient if the office did not regularly record the event, if the search was not diligent, or if the record system was incomplete. The absence of a record is evidence of nonoccurrence only because the office’s regular practice makes the missing entry informative; it is not conclusive proof.

There is an additional criminal-case procedure. If the prosecution intends to offer a Rule 803(10) statement, it must give written notice at least 14 days before trial, unless the court permits later notice for good cause. The defendant must object in writing at least 7 days before trial, or the objection may be treated as waived unless the court permits a late objection for good cause.

Run the public-record analysis in order:

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This material is closed-book: reproduce the three Rule 803(8) routes, the trustworthiness condition, and the Rule 803(10) search requirements without prompts.

Second-Tier Statements: Purpose, Authority, and Reputation

These Rule 803 exceptions do not depend on the declarant’s unavailability. Each instead turns on a precise circumstance that supplies reliability. The near miss is usually a statement that sounds useful but misses that circumstance.

Medical diagnosis or treatment - Rule 803(4). The statement must be made for-and reasonably pertinent to-medical diagnosis or treatment. It must describe one of the following:

1. Medical history;
2. Past or present symptoms or sensations;
3. The inception of symptoms or sensations; or
4. The general character of the cause or external source of the condition, insofar as reasonably pertinent to diagnosis or treatment.

The declarant’s purpose at the time controls. A statement made to a physician, nurse, paramedic, therapist, or other person may qualify; the recipient’s job title is not the decisive fact. Conversely, a statement made to a medical professional solely to build a litigation case does not qualify merely because the conversation occurred in a medical setting.

Statements about symptoms, timing, and physical sensations ordinarily fit. Statements assigning legal fault, demanding compensation, or describing who should lose a lawsuit ordinarily do not, because they are not reasonably pertinent to diagnosis or treatment. Identity is not automatically excluded: in an abuse or assault case, the identity of the person causing the injury may be medically pertinent to treatment and safety. The question is pertinence in the particular circumstances, not a categorical rule about identity.

A hospital chart does not receive automatic Rule 803(4) treatment. The patient’s information supplied for diagnosis may qualify under Rule 803(4), while a provider’s separate out-of-court statement requires its own basis.

Learned treatises - Rule 803(18). A statement in a published treatise, periodical, or pamphlet may be used only while an expert is testifying and only if the publication has been established as a reliable authority. Authority may be established by:

1. The testifying expert’s admission or testimony;
2. Another expert’s testimony; or
3. Judicial notice.

When those conditions are met, the statement may be read to the factfinder for its truth. The publication itself may not be received as an exhibit under Rule 803(18). The expert’s testimony is the vehicle through which the statement enters.

The near misses are exact. A publication does not qualify merely because it is famous, scholarly, or quoted by counsel. A lawyer cannot establish authority by assertion. And an absent expert cannot be replaced by offering the treatise alone. The treatise must be connected to testimony by an expert who is testifying, although that expert need not be the person who originally wrote or published it.

Reputation concerning character - Rule 803(21). The exception covers a reputation concerning a person’s character among the person’s associates or in the community. It admits the community’s or group’s reputation, not a witness’s unsupported personal opinion and not a specific act offered to show character.

Thus, “Everyone in the neighborhood considers Dana honest” is reputation evidence. “I personally think Dana is honest” is personal opinion. “Dana once returned a lost wallet” is a specific instance. Those statements may raise separate character-evidence questions, but only the first has the form required by Rule 803(21). The hearsay exception does not independently authorize character evidence when the governing character rules would otherwise bar the offered use.

One Report, Four Choices: Put the Limits to Work

A state transportation department investigator conducts an investigation authorized by state law after a highway collision. The investigator measures skid marks, records lane positions, and includes those factual findings in the department’s report. The injured driver offers the report in a civil negligence action; the report is properly authenticated, and neither side identifies any reason to doubt its sources or preparation.

Recurring errors in these objectives include:

• Treating every government report as admissible without classifying its content under Rule 803(8)(A).

• Applying the criminal-case law-enforcement limitation to office activities, or ignoring it when the prosecution offers police observations against a defendant.

• Inferring that an event did not occur from a missing file without proving regular recordkeeping and a diligent search under Rule 803(10).

• Admitting a statement about fault or litigation demands merely because it was made to a medical professional.

• Calling a witness’s personal belief or a specific act a community reputation, or offering a learned treatise without a testifying expert.

Three Short Tests: Hold the Exceptions Apart

High-Yield Points - ⚡ Biggest Takeaways

Public-record admission requires a Rule 803(8) category and no trustworthiness problem. Rule 803(10) demands a diligent search for a regularly kept matter. Diagnosis purpose, expert authentication, and community reputation mark the three second-tier routes.