Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth…matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel. In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion. That left the Seventh Circuit with the question of why police reports are inadmissible in criminal cases. The court noted that “The apparent concern of the drafters [of the exception in Rule 803(8)(B)] was that use of records in criminal cases would cause ‘almost certain collision with confrontation rights.'”…And during floor debates on the rule, “concern was expressed that [without the exception, Rule 803(8)] would allow the introduction against the accused of a police officer’s report without producing the officer as a witness subject to cross-examination.” If this were the only concern, the prosecution might not have faced a problem on remand because [t]he police officer who had signed the criminal complaint in that case testified at the trial of the present case about the proceedings in that other case, including the allegations in the complaint that he had drafted. So he was available for cross-examination. The problem for the prosecution, though, was that this was not the only concern. Instead, there is more to the exception than a concern with unavailability of cross-examination. There is also a concern that reports by law enforcers are less reliable than reports by other public officials because of law enforcers’ adversary relation to a defendant against whom the records are sought to be used.

How nice of Judge Posner to remind us that police reports can in fact be biased because of a conflict of interest. Thanks to Prof. Colin Miller for this.

Sandra Guerra Thompson
University of Houston Law Center
Ohio State Journal of Criminal Law, Forthcoming
University of Houston Law Center No. 2010-A-1

Abstract: Despite a growing awareness that mistaken eyewitness identifications contribute significantly to wrongful convictions, most courts continue to apply federal due process criteria for admissibility of eyewitness identification that has proved useless in protect against the use of highly unreliable evidence. In response, this Article reviews the path-breaking decisions of several State Supreme Courts that have blazed their own trail. It explores the issues that courts have addressed, the rules they have devised, and the legal grounds for their decisions, and from this, concludes that State Supreme Courts can implement appropriate criteria that would in fact promote accuracy and fairness in the use of eyewitness identification. Part I briefly outlines and critiques the Supreme Court’s jurisprudence on eyewitness identifications and due process. It treads on ground well-worn by scholars who have for decades decried the Court’s failure to provide a due process test that would protect against the use of unreliable identification evidence. Part II explores the role that State appellate courts can play in developing a jurisprudence of eyewitness identification evidence that meaningfully incorporates social science research and carefully balances the interests of law enforcement and the accused. Finally, because of the superior role that judges have in protecting both constitutional and civil rights as well as the integrity of the administration of criminal justice, the article concludes that it is incumbent on State Supreme Courts to show leadership in developing solutions to the problems that plague this area . Accordingly, Part III argues that State Supreme Courts are well-suited to take an active part in the “laboratory” model of criminal justice that characterizes our federalist system.