Prove it! Musings on advocacy, evidence, and the problems of proof at trial: North Carolina’s Police Officer Exception to the Hearsay Rule

As a law professor, I’m always looking for interesting cases from which to create exam questions, both multiple choice and essay.  Sometimes the cases are rather straightforward and illustrate the application of a rule of evidence quite well.  These usually make great cases for multiple choice questions.  Other times they are complicated and nuanced and are much closer calls on the outcome.  These make great essay questions.  Then there are those that simply get the law wrong.  They, too, make great questions on exams, but the “best answer” on my exam is not necessarily the answer the court came up with.  Joines v. Moffitt, ___ N.C. App. ___ (2013), is a classic example of the latter.

Jackie Joines sued Brittany Moffitt for injuries arising out of a motor vehicle accident.  Jackie was travelling south down highway 115 on his motorcycle in Mooresville, NC, and moved into the left turn lane to turn left onto Plaza Drive.  Brittany, meanwhile, was waiting to exit the parking lot of a shopping center near the intersection of highway 115 and Plaza Drive.  A truck driver stopped in the lane of northbound traffic on highway 115 and motioned Brittany to merge onto the highway.  As she merged onto the highway and headed north, Jackie was in the middle of his left turn.  Brittany t-boned Jackie’s motorcycle and hit Jackie in the right leg, injuring it so badly that doctors had to amputate Jackie’s right leg below the knee.

Officer Mike Allen of the Mooresville Police Department investigated the accident.  He interviewed Brittany and two other eyewitnesses at the scene.  He prepared the standard NC accident report and included a hand-drawn diagram of the path of the vehicles, as well.  Officer Allen testified at trial that he prepared the report, the exhibit offered at trial was a true copy of the report, he prepared the report near the place and time of the accident between Jackie and Brittany, he prepared the report in the regular course of his business as a Mooresville police officer, and that it was the regular course of practice for the Mooresville Police Department to prepare and retain such reports.  Importantly, he also testified that he obtained the information contained in his report from the defendant and from the two witnesses he interviewed at the scene, Blackwelder and Jackson.  Upon this foundation, the trial court found the report met the 803(6) exception to the hearsay rule and admitted it into evidence as a summary of the interviews of the two witnesses.  The jury found Brittany was negligent but that Jackie was contributorily negligent as well.  The court entered judgment for Brittany and Jackie appealed.

The issue before the Court of Appeals was whether the accident report was admissible under N.C.R.Evid. 803(6).  The officer’s report was clearly hearsay, an out of court statement offered for the truth of the matter asserted.  The court noted that records of regularly conducted activities are admissible as an exception under 803(6) if the report was “(1) prepared at or near the time of the acts(s) reported; (2) prepared by or from information transmitted by a person with knowledge of the acts(s); and (3) kept in the course of a regularly conducted business activity.”

Before the Court of Appeals, Jackie argued the report was inadmissible because the circumstances surrounding its preparation indicated a lack of trustworthiness in that Jackie, the plaintiff, was not interviewed by the police officer and because the officer did not have personal knowledge of the facts he included in the narrative portion of the report. Jackie also argued the diagram was untrustworthy because it was not to scale and did not accurately reflect where the turn lane began.

In finding the report admissible, the Court of Appeals noted, “the investigating officer prepared both the narrative and diagram using information he received from defendant, Blackwelder, and Jackson, as permitted by Rule 803(6).”  (emphasis supplied).  In other words, the court found that because the defendant and the two witnesses had “personal knowledge” of the facts they reported to the police officer, the report met the Rule’s requirement that it be “prepared by or from information transmitted by a person with knowledge of the act(s).”

If you did not know anything about the hearsay rule and the development of its many exceptions, you might think the court’s reasoning makes sense.  But, the court was wrong and clearly misunderstands 803(6).  The official commentary to the North Carolina rule is instructive:

Exception (6) concerns records of regularly conducted activity.  The exception is derived from the traditional business records exception.  The exception is limited to business records, but business is defined to include the records of institutions and associations like schools, churches, and hospitals.  This appears to be a slight expansion of the current North Carolina business records exception.  See Brandis, supra § 155.

The exception is consistent with North Carolina practice in that the person making the record is not required to have personal knowledge of the transaction entered.  See Brandis, supra, § 155 at 617.  However, it must be shown that the record was actually based (or it was the regular practice of the activity to base the record) upon a person with knowledge acting pursuant to a regularly conducted activity. 3

In other words, the person preparing the record, in this case Officer Allen, does not have to have personal knowledge of the facts included in the record.  So far so good.  But, and this is important, the person with personal knowledge of the facts who transmits them to the persons preparing the report, must have been acting pursuant to a regularly conducted activity when they transmitted the information to Officer Allen.  This is what courts and commentators routinely refer to as “a business duty to report.”  Neither the defendant, Brittany Moffit, nor the two eyewitnesses, Blackwelder and Jackson, worked for the Mooresville Police Department and were at the scene observing pursuant to a regularly conducted activity of the Police Department.  They were simply witnesses to a traffic accident and did not have a “business duty to report” their observations to others within the organization.

If another member of the Mooresville Police Department had investigated the scene, made measurements of skid marks, noted the final resting place of the vehicles, and otherwise reported to Officer Allen what he personally observed at the scene, Officer Allen could have included that information within the report without difficulty.  In this instance, the other police officer had personal knowledge of the facts transmitted to Officer Allen and, as a member of the police department, had a business duty to report that information accurately.  That is what gives such records the reliability and trustworthiness needed to justify an exception to the hearsay rule.

Simply speaking, one cannot bootstrap the hearsay statements of witnesses into evidence by including them in a police officer’s accident report.  Think about it in terms of the interests served by the hearsay rule if the jury is permitted to hear how the accident happened through the officer’s repetition of what he was told by others at the scene.  How do we know the witnesses were in a good position to observe what they reported?  We don’t, and neither does Officer Allen.  That is why, to explore the accuracy of their perception, we need to cross-examine the witnesses at trial.

How do we know Officer Allen understood exactly what they were saying?  We don’t, and neither does Officer Allen.  That is why, to explore the preciseness of their version of events, we need to cross-examine the witnesses at trial.

How do we know the witness’ memory did not fail them between the time they saw whatever it was they saw and the time at which they conveyed it to Officer Allen?  We don’t and neither does Officer Allen.  That is why, to test the soundness of their memory, we need to cross-examine the witnesses at trial.

How do we know the witnesses did not discuss what they had seen among themselves before the officer arrived and, thus, subconsciously melded and merged their stories into a coherent narrative?  We don’t and neither does Officer Allen.  That is why, to test their version of events, we need to put the witnesses on the stand at trial, under oath, in the crucible of cross-examination.

How do we know the witnesses were being truthful with Officer Allen?  After all, one of the witnesses was Brittany, the defendant, who certainly had a motive to shade facts in her favor.  We don’t, and neither does Officer Allen.  That is why, to test their sincerity, we need to cross-examine them at trial.

Only by placing all three witnesses under oath on the witness stand in front of the jury and subjecting them to cross-examination can we minimize the hearsay risks of faulty perception, faulty memory, faulty narration, and faulty sincerity.  Rule 803(6) minimizes those risks sufficiently to dispense with the requirement for oath, cross-examination, and demeanor evidence, but only when the person with personal knowledge who transmits the information has a duty arising out of their association as part of the business or organization to transmit their factual knowledge accurately.  Under those circumstances we can say that if it is good enough for the business to conduct its affairs, it should be good enough for the jury to do their task in the courtroom.

Admittedly, the words “business duty to report” are not found in specific language of Rule 803(6) in either the Federal or State version of the rule.  But the requirement that the person who transmits the information to the employee who prepares the report must also be part of the business whose records are being offered into evidence was well established in the common law when both the Federal and North Carolina rules were adopted.  Nothing in the adoption of the rules suggests either jurisdiction took the radical step of jettisoning the very factors that gave the information sufficient trustworthiness to warrant its inclusion in those exceptions that are so reliable and so trustworthy that our system admits them regardless of whether the declarant is unavailable.

The common law origins of the business records exception to North Carolina’s hearsay rule specifically relied upon the business duty of the person reporting the information to give it the requisite reliability and trustworthiness to earn an exception to exclusion as hearsay.  In Firemen’s Ins. Co. v Seaboard Air Line Ry, 50 S.E. 452, 138 N.C. 42 (N.C. 1905), the plaintiff insurance company alleged that some cotton it had insured was destroyed by fire due to the negligence of agents and employees of the defendant railroad.  Specifically, plaintiff alleged that sparks negligently emitted from the engine of the defendant’s train started a fire in the warehouse where the cotton was stored.  The resulting blaze consumed the cotton, plaintiff paid the owner of the cotton and, in return, was subrogated to the owner’s right to recover against the railroad.

A critical issue in the case was the time at which the defendant’s train arrived at the station in Hamlet, N.C., where the cotton warehouse was located.  The defendant claimed the temporal relationship between the arrival of its engine and the start of the fire was such that sparks from the engine could not have been the cause of the fire.  To prove the arrival time of the engine at Hamlet, the defendant produced its train dispatcher whose duty was to record on a master “train sheet” the arrival and departure of all trains operating on the defendant’s rail line.  To compile the master sheet, the dispatcher relied upon telegraphed reports from the station agents employed by the defendant to manage the arrival and departure of trains from the various stations along the rail line.  In this case, the defendant’s dispatcher received a telegram from the station manager at Hamlet reporting the arrival of defendant’s train at 12:37pm on the day in question.  Upon receipt of the telegram from the Hamlet station manager, the dispatcher dutifully recorded the time in the train sheet.

The plaintiff objected to the admission of the train sheet at trial because the dispatcher did not have personal knowledge of the time the train arrived in Hamlet and the entry in the train sheet as to the time was hearsay.  Noting that the case was one of first impression, the North Carolina Supreme Court surveyed the leading evidence authorities of the day, as well as decisions from other jurisdictions, and found an exception to the hearsay rule for records prepared “in the regular course of duties or business.”  The Court classified the exception as falling into two categories:

First, those made by the entrant respecting a transaction conducted by or matter known to him personally, in which no other person has taken any part.  Second, those made by the entrant upon information communicated to him by some other person acting in the line of his duty to make report to him.  The entries made by the train dispatcher fall within this class.

(emphasis supplied).

The Court explained that records falling in the two categories described were important to the daily operations of business and were the “ultimate basis of calculation, investment, and general confidence in every business enterprise” and as such should be “sanctioned and not discredited by courts of justice.”  Thus, the hearsay exception for business records was adopted into the common law of evidence in North Carolina.   Note well, however, that if the preparer of the document did not have personal knowledge of the information placed in the business record, the information must have been received by him from someone “acting in the line of his duty to make report to him.”  Accordingly, North Carolina’s version of the common law business records exception incorporated the “business duty to report” requirement when the preparer of the record did not have personal knowledge of the facts.

The foundation required to admit a police report as a business record under N.C.R.Evid 803(6) probably began to run off the rails around 1983.  In Fisher v. Thompson, 50 N.C. App. 724, 275 S.E.2d 507 (1981), a motor vehicle accident was investigated by an officer who arrived at the scene some five minutes after the accident and recorded in his report the observations of an eyewitness.  The court noted that the account provided by the witness to the police officer was hearsay and not part of the res gestae.  Thus, the court seemed to recognize and apply the principle that the person providing the information for the business record must be part of the business entity involved and have a duty to either record the information accurately or to report it accurately to another within the business.  Absent that element, the report from the witness not associated with the business entity must satisfy a hearsay exception or be offered for a non hearsay use.  While sustaining the trial judge’s ruling to exclude the report as a business record because of the hearsay within hearsay problem presented by the eyewitness’ account being included in the report, the Court of Appeals did find that the police officer should have been allowed to read the entire report as his past recollection recorded.  This, of course, introduces the same hearsay within hearsay problem the court just identified in the business record exception as it applied to the report.  Unfortunately, the court did not appreciate the issue and held that the officer could read the entire report, including what the eyewitness told him, as his past recollection recorded.  Thus, the contours of the Police Office Exception to the Hearsay Rule began to emerge.

The wheels really came off a few years later, and shortly after the adoption of the North Carolina Rules of Evidence, when the Court of Appeals decided Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198 (1988).  The issue was whether a police accident report was admissible as an exception to the hearsay rule.  The report in Wentz, like the report in Fisher, contained the hearsay account of an eyewitness to the accident who was not employed by the police department and who had no business duty to report what he had seen.  The court quoted the language of the new Rule 803(6) and cited Fisher.  Apparently, the Wentz court did not notice that Fisher did not admit the hearsay within hearsay as part of the business records exception, but instead only permitted, erroneously, the entire report to come in as the past recollection recorded of the police officer, an issue not present in Wentz.

The errors were compounded in Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999).  In Nunnery, the court admitted a police accident report under N.C.R.Evid. 803(6) containing a narrative description of the actions and path of a hit and run vehicle based on the descriptions of witnesses at the scene.  Citing Wentz for the proposition that the “business records exception expressly provides for the use of information from those having first-hand knowledge of the incident in question,” the court pointed to the fact that the officer who prepared the report obtained the information from eyewitnesses at the scene of the accident.  But, the court completely ignored the fact that those eyewitnesses did not work for the police department and did not have a duty arising out of their association with the police department as the creator and maintainer of the records to accurately, regularly, and routinely, report their observations to fellow employees of the organization.  In other words, the police officer’s investigation report was reliable and trustworthy because the police officer merely transcribed what unsworn and uncross-examined witnesses, who were not employed by nor who had any business connection with the police department, claimed to have seen and who did not disclose or reveal any bias, lack of capacity, faulty memory, or other diminished capacity.  The Police Officer Exception was now fully revealed.

Returning to the Joines case, Officer Allen did not have personal knowledge of the facts he included in his report.  He did not witness the accident.  He arrived after the collision.  He certainly saw its aftermath, but he had no personal knowledge of how the accident occurred.  Yet, his report included a narrative that described how the accident occurred.  He based that narrative on what three people, the defendant, Blackwelder, and Jackson, told him.  None of those witnesses worked for the Mooresville Police Department and none of them had a “business duty to report” as contemplated by the foundation elements of N.C.R.Evid. 803(6).  From Officer Allen’s perspective, the accounts of the three witnesses were hearsay.  By including their accounts in his report, he incorporated hearsay into hearsay.  When dealing with hearsay within hearsay, N.C.R.Evid 805 requires that every level of hearsay must meet an exception or it is inadmissible.  While 803(6) stands ready to provide an exception for Officer Allen’s out of court statement in making the report, we must also find an exception to the hearsay rule to cover the statements made by the witnesses to Officer Allen if they are to be admitted for the truth of the matter asserted.

Other commentators have explained it this way:

Quite frequently, business records contain statements of persons who are not employees of the business which keeps the record and who do not have a business duty to report accurately to that business.  Such third-party statements recorded in business records are not comprehended by this particular exception, whereas all statements of persons who have a business duty to report to the business which keeps the records are encompassed by the exception.  Statements of third persons are only admissible when contained in a business record where they satisfy the multiple hearsay requirements of Rule 805.  Under Rule 805, the third-party statement must have an independent basis of admissibility pursuant to an exception to the basic definition, a hearsay exception, a non-hearsay basis, or some other basis identified in Rule 802. 4

To be fair to the court and litigants in Joines, this was not a case of first impression. As noted above, the Court of Appeals had departed from the proper analysis of whether a report meets the 803(6) foundation requirements years before.  It is not, however, too late to return to the correct analysis.  The Court of Appeals is free to correct its error, no matter how longstanding, in an appropriate case.  Until then, North Carolina can uniquely claim to have a Police Officer Exception to the Hearsay Rule.

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About Professor Woody Woodruff (10 Articles)
Professor Woodruff has been teaching evidence and trial advocacy at Campbell University School of Law for over 20 years. Prior to joining the Campbell faculty, he was a colonel in the Army Judge Advocate General’s Corps and was responsible for defending the Army in civil litigation. Professor Woodruff graduated from the University of Alabama and received his J.D., magna cum laude, from the University of South Carolina. Click here to view Professor Woodruff's full bio on the Campbell Law website.
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