Why Incriminatory Police Reports Are Unreliable/Inadmissible & Exculpatory Police Reports Are Reliable/(Potentially) Admissible

In response to Monday’s post, I’ve been getting a lot of questions about the admissibility/reliability of police reports. The long and short of the analysis is this: If a police report contains information that seems helpful to the defense, that information is thought to be reliable and admissible against the prosecution (barring another reason for inadmissibility). On the other hand, if a police report contains information that seems helpful to the prosecution, that information is thought be unreliable and inadmissible against the defendant. 

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for 

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B)  the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.

The opinion of the Supreme Court of Michigan in Solomon v. Shuell, 457 N.W.2d 669 (Mich. 1990), explains the import of (Michigan’s version of) this Rule:

The reason for the express exclusion of police reports in criminal cases, though, illuminates the reason for exclusion of police reports in the circumstances of this case. A concern with the confrontation rights of an accused is reflected in MRE 803(8)(B), which like the federal rule, excludes “in criminal cases, matters observed by police officers and other law enforcement personnel.” The FRE 803(8)(B) exclusion of police reports in criminal cases was added by House amendment after discussion of whether such reports should be admitted against a defendant who has no opportunity to cross-examine the officer… A related rationale for the exclusion of police reports in criminal matters is that police reports in criminal cases are felt to be unreliable because of the adversarial nature of the confrontation between the police and the citizen in a criminal case. The limitations on FRE 803(8)(C), are similarly shaped largely by concern for the confrontation rights of a criminal defendant. FRE 803(8)(C) makes investigative or evaluative reports admissible only in civil cases or against the government in criminal cases. The committee so limited part (C) “in view of the almost certain collision with confrontation rights which would result” from the use of evaluative reports against a criminal defendant. Advisory Committee Note, FRE 803(8)(C). Clearly, the rulemakers were hesitant to allow the admission of a document which was the product of an adversarial relationship, both because the circumstances of production lessened the likelihood of reliability, and because the admission of such a document would not be fair to a criminal defendant.[FN7]

[FN7] Consistent with the intent of Congress, FRE 803(B) should be interpreted to allow the introduction of police reports of matters observed pursuant to duty when offered by a criminal defendant. United States v. Smith, 172 U.S.App.D.C. 297, 521 F.2d 957 (1975). (emphases added).

In other words, the circumstances of production make police reports unreliable/inadmissible as they are likely written in a way that makes it appear that the defendant as guilty. For the same reason, when a police report makes a defendant look innocent, the report is thought to be reliable and admissible (barring another reason for admissibility) because police lack a similar motive to lie or misrepresent evidence in a way that is favorable to the accused.

The inverse reasoning applies under Federal Rule of Evidence 801(d)(2)(A), which allows the prosecution to admit incriminatory statements by the defendant but does not allow the defendant to admit his own exculpatory statements. The latter (“I’m innocent!”) are thought to self-serving and unreliable while the former (“I killed him”) are thought to be reliable because  a person generally does not confess to a crime unless he is guilty.

-CM