United States v. Smith, 521 F.2d 957 (D.C. Cir. 1975)

While counsel did not expressly refer to the radio broadcast in cross-examining Williams about these two inconsistencies, it is clear that the transcript was the source of this information. In cross-examining Officer Carr about the same two points, the defense did expressly refer to the broadcast transcript. Tr. 104-105. On these two points the Form 251 was supportive of Williams’ testimony. On the form the robber’s hair was simply described as “short,” and his complexion as “bm.”

In addition to these inconsistencies between Williams’ testimony and the two documents, the defense also pointed to Williams’ statement that the robber was 5'8", an assertion supported by the documents. Defense counsel described his client as being 5'2" in height, and appellant was allowed to stand so the jury could judge his height for themselves. Tr. 130-131.

BY MR. REED [counsel for appellant, cross-examining the witness Williams]: Q. Now, I ask you do you see what has been marked as Defendant’s Exhibit No. 5 [P.D. Form 251]?. [Williams], Yes. Q. Do you see the name— MR. MULROONEY [prosecutor]: Your Honor, I am going to object to this. The officer who prepared that report is here. I think it is entirely improper for questions from this writing to be directed to this witness. THE COURT: What is the purpose of it? MR. REED: Well, Your Honor— THE COURT: You can’t impeach him with it. It is not his statement. MR. REED: Weil, if he made the statement, he is going to adopt the statement as the statement he made substantially. I can impeach him with it, Your Honor. *961THE COURT: Well, if he is going to be willing to sign it and adopt it, that is something else. He has already said he didn’t see him writing it down. MR. REED: I believe he can read this, Your Honor, and determine whether or not this is substantially what he told the officer at that time. THE COURT: Substantially is not good enough in a case like this. If you want to use the statement, put it in through the officer. Don’t try to impeach him with something another person wrote down. MR. REED: Well, I am going to have to recall this witness, then, Your Honor, because it’s his statement; it’s not the officer’s. THE COURT: Is it signed? MR. REED: It is signed by two police officers. THE COURT: All right. But he didn’t sign it, did he? MR. REED: No, but he made it. THE COURT: See if you can refresh his recollection, but don’t try to impeach him with it. THE COURT: Let him refresh his recollection and repeat what he did tell the officer, but do not try to impeach him from somebody else’s statement. Tr. 63-65.

MR. REED: I would move both the 251 and the transcript into evidence at this time, Your Honor. MR. MULROONEY: No objection, Your Honor. THE COURT: Would you come to the bench. (At the Bench:) THE COURT: What is the purpose of this? MR. REED: I just want to use them to argue as to the time of the robbery. I just want to argue with them, Your Honor. THE COURT: They aren’t material. That hasn’t been substantiated. MR. REED: The complaining witness says a different time— THE COURT: If you are offering it to show his testimony, all you are doing is offering it for impeachment. MR. REED: I am offering it to establish the time of the robbery. THE COURT: You can argue that to the jury. MR. REED: This is his statement. He has signed it. I would like to use that, Your Honor. THE COURT: You can argue it to the jury. But, I am not going to let this hearsay go in against the complaining witness. Tr. 115-116.

On all six points Williams adhered to his version, and insisted that Officer Carr must have been in error. On the two inconsistencies derived from Officer Carr’s radio broadcast, the Form 251 supported Williams’ testimony. See note 1 supra. The broadcast supported his assertion that the robbery took place before 8:00 a. m. rather than at 8:05 since the broadcast itself occurred at 8:05, as is noted therein. The 58th and East Capitol Street pickup point was supported by the clerk’s summary of Williams’ grand jury testimony, Defendant’s Exhibit 4, see United States v. Broadus, 146 U.S.App.D.C. 265, 267, 450 F.2d 1312, 1314 (1971), and his testimony at appellant’s first trial on this charge. Tr. 117. There was no supportive evidence for Williams’ assertion that the robber had never touched his wallet and change purse and that he had told Officer Carr the robber was wearing Hush Puppies. Officer Carr could not recall the last point. Tr. 109-110.

The full description on the form was: N/M 17-18 yrs. Bm. Compl. 5'8" 110 lbs. short hair bm. suede coat, khaki trousers. Williams testified that “as far as I can remember” he gave Officer Carr the following description: Negro male, about 18 or 19, and he had on brown pants and a suede jacket and Hush-Puppy shoes, and with a boy’s haircut. Tr. 22. Appellant, 18 years old at the time of his arrest, waS arrested wearing khaki trousers *962and Hush Puppy shoes. Both of these items were introduced by the Government, over defense objections, into evidence and identified by Williams as similar to those worn by his assailant. Tr. 26-27. Appellant was not wearing a suede jacket, but rather, as he emerged from his house, was putting on a trench coat. Tr. 23. The record does not reflect appellant’s hair style or complexion, but the jury was able to judge both for itself.

This process was so extensive as to be, in the judgment of the trial court, unduly repetitious. Tr. 91.

The Court instructed the jury on impeachment by prior inconsistent statements as follows: You will undoubtedly recall that in the course of this trial, on several occasions witnesses were confronted with statements they allegedly made outside of court at an earlier date which did not seem to jibe with what they were saying on the stand. I instructed you then and I instruct you again now that it is for you to determine whether or not any of those prior statements were in fact inconsistent with what the witness was saying on the witness stand. I would again advise you that the testimony of a witness may be discredited or, as lawyers say, impeached by showing that he has previously made statements which are inconsistent with the testimony he has given from the stand. The prior statement, however, is admitted into evidence solely for your consideration in evaluating the credibility of that witness. You may consider that prior statement only in connection with your evaluation of the credence to be given to the witness’ present testimony from the stand. You must not consider the prior statement as establishing the truth of any fact contained in that prior statement. Tr. 158-159.

Plainly the records could properly be used to cross-examine the complaining witness Williams so as to lay the foundation for the anticipated subsequent impeachment of Williams by the maker of the records, Officer Carr C. McCormick. Evidence § 37 (1954); United States v. Hibler, 9 Cir., 463 F.2d 455, 461-472 (1972). Cf. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, 43 U.S.L.Week. 4815 (1975). While the trial court was not certain about the theory under which it was acting, it nonetheless allowed such cross-examination here, Tr. 65-69, 72-73, so the only issue before us is the admissibility of the documents themselves.

In pertinent part, the Business Records Act provides as follows: § 1732. Record made in regular course of business; photographic copies (a) In any court of the United States and in any court established by Act of Congress, *963any 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, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. The term “business,” as used in this section, includes business, profession, occupation, and calling of every kind. 28 U.S.C. § 1732(a) (1970), repealed Pub.L. No. 595, § 2(b), 88 Stat. 1926, 1949 (1975).

The new version reads as follows: Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. See note 24 infra.

Except as noted at TAN & note 15 infra, the Business Records Act as codified in 28 U.S.C. § 1732(a) (1970) has not been altered in any way relevant to this opinion by the repeal of that section and the adoption of FRE Rule 803(6). See notes 10 — 11 supra, 24 infra. Since § 1732 governed Smith’s trial, the text of this opinion discusses that section only. The similarity of the provisions and our conclusion that the police report is admissible under the FRE, see note 24 infra, as well as under § 1732, renders unnecessary a decision as to which version would govern a new trial if one is granted.

In this opinion, we address both the District Court’s refusal to admit Form 251 into evidence in the effort to impeach Williams at the time he testified, and the court’s subsequent refusal to admit the form after Officer Can-completed his testimony concerning it. When introduction was first attempted, the form was admissible as impeachment material only if it could qualify under the Business Records Act as a record of Williams’ description of his assailant, and only after a proper foundation was laid for its use as a prior inconsistent statement by Williams. When introduction was again sought, the form could of course have been given the same treatment. However, it is conceivable that the form might have been admitted for impeachment purposes under an alternative theory — as the written component of the evidence supplied by Officer Carr that Williams previously spoke inconsistently in giving him the description which the form incorporated. *964To determine the propriety of the District Court’s exclusion of the form when first offered during Williams’ testimony, we must determine whether the form was within the category of documents covered by the Act, and consequently admissible at that stage of the trial upon the showing which the Act requires. Since we hold in the affirmative, we have no occasion to consider the alternative theory of admissibility.

The transcript of a radio broadcast can be as much a business record as a written document. See LeRoy v. Sabena Belgian World Airlines, 2 Cir., 344 F.2d 266, cert. denied, 382 U.S. 878, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965).

The Federal Rules of Evidence do away with this troublesome language. See note 11 supra.

The danger of admitting such reports has been well put: These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of random, irresponsible testimony beyond the reach of the usual tests for accuracy. Note, Revised Business Entry Statutes: Theory and Practice, 48 Colum.L.Rev. 920, 927 (1948).

Indeed, the business record exception is desirable not only because the maker, acting in the regular course of his business, is presumed, and has every reason to be, accurate, but also because one who records many similar documents is likely to forget at a later date the circumstances surrounding the particular one at issue.

An alternative theory of admissibility might be grounded in the Government Records Act, 28 U.S.C. § 1733 (1970), or in the common law version of that Act that has developed in the District of Columbia. See United States v. Broadus, supra note 5; Howard v. United States, 108 U.S.App.D.C. 38, 278 F.2d 872 (1960). Because this theory is unnecessary to our resolution of this case, we do not reach this issue.

Of course, if the Government chooses to contest the admissibility of a report so offered it may do so on the ground that the report is not sufficiently trustworthy to qualify as a business record. To do this the Government may call and examine the officer who made the report. Thus if there were serious questions about the reliability of any given police record, the jury would not be deprived of the benefit of cross-examination of a live witness as to the accuracy of the report. The business record exception is only an evidentiary shortcut; where there is a real dispute the jury’s ability to make an informed determination may always be protected.

Many traditional hearsay exceptions also operate as exceptions from the demands of the confrontation clause of the Sixth Amendment. Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (dying declarations); Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (testimony of deceased witness who had testified at former trial; 5 J. Wiemore. Evidence § 1397 (3d ed. 1940). Indeed, we have typically applied the business records exception in criminal cases without insisting that the confrontation clause demands the testimony of the maker of the record. See, e. g., Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767 (1969) (hospital records); Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19 (1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954) (same). However, the admission of police records, which may at times contain written summaries of the prosecution’s entire case against a defendant, see note 22 infra, poses more difficult Sixth Amendment problems. It is clear that the mere existence of a hearsay exception does not cause the confrontation clause to recede. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Thus confronta-*966tlon values have been found violated even when evidence was admitted under arguably recognized hearsay exceptions. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The circuits have split on whether the business record exception always operates consistently with the demands of the Sixth Amendment. See United States v. Haili, 9 Cir., 443 F.2d 1295 (1971) (yes); United States v. Leal, 9 Cir., 509 F.2d 122 (1975) (yes); McDaniel v. United States, 5 Cir., 343 F.2d 785 (1965) (no). We think the Fifth Circuit view is the better. In McDaniel the court held: 343 F.2d at 789. Such a balancing test is clearly appropriate. While it might be proper to admit a police record as a business record to prove the date an automobile theft has been reported to the police, United States v. Wolo-syn, 9 Cir., 411 F.2d 550 (1969), see note 23 infra, it would strike at the core of the Sixth Amendment to admit a police report summarizing the prosecution’s entire case against a defendant in the absence of the maker of the record. Such a procedure would do no less than allow the prosecution to proceed without allowing the defendant the opportunity to cross-examine what may be his sole accuser. Cf. Barber v. Page, supra; Pointer v. Texas, supra. While it may be a closer question whether such evidence is admissible if the maker testifies and is subjected to cross-examination, we do not attempt an answer since the record would be inadmissible in any case under the Palmer doctrine discussed in text.

The records were excluded because they were improperly offered to prove the truth of hearsay contained therein, United States v. Burruss, 4 Cir., 418 F.2d 677 (1969); United States v. Halperin, 5 Cir., 441 F.2d 612 (1971); United States v. Graham, 6 Cir., 391 F.2d 439, cert. denied, 393 U.S. 941, 89 S.Ct. 307, 21 L.Ed.2d 278 (1968), or because they were offered without authenticating testimony. United States v. Martin, 5 Cir., 434 F.2d 275 (1970).

Some of these cases seem to take the view that quite apart from the business records exception United States v. Parker, 8 Cir., 491 F.2d 529 (1974) (Bright and Ross, JJ., separate statement of views on petition for rehearing) (emphasis in original), quoting Sanchez v. United States, 8 Cir., 293 F.2d 260, 269 (1961), quoting United States v. Ware, 7 Cir., 247 F.2d 698, 700 (1957). See also United States v. Brown, 5 Cir., 451 F.2d 1231 (1971). These cases all involve the admissibility of narcotics agents’ summaries of the case against the defendant attached to the lock seal envelope in which confiscated narcotics were stored for trial. As the Ware court found, with such evidence before the jury, “The government’s witnesses in effect accompanied the jury into the jury room.” 247 F.2d at 700. If this is an independent ground of decision for these cases, it would add to the Palmer and confrontation clause rationales for excluding police records offered by the prosecution.

It may be that under this rule the police record was properly admitted in United States v. Wolosyn, 9 Cir., 411 F.2d 550 (1969). See page 18 supra. The record in Wolosyn, far from being a summary of the Government’s case against the defendant, see note 22 supra, was only proof of the date an automobile had been reported stolen. Such a record may not be suspect under Palmer at all, since it arguably relates primarily to the systematic conduct of police business — the recording and investigation of crime — and only secondarily to prosecution of suspected law breakers. Cf. United States v. Ware, supra note 22, 247 F.2d at 700. Likewise, it would seem that police personnel records might be admissible under the espoused rule.

The same result would be reached under the Federal Rules of Evidence. Rule 803(6) contains the business records exception in much the same form as it is found in the Business Records Act. See notes 10-11 supra. Congress, which considered the FRE at great length, can be presumed to have been aware of the interpretation of the business records exception current in the courts when it approved Rule 803(6). See 2A Sands, Sutherland Statutory Construction § 49.09 (1973); cf. Georgia v. United States, 411 U.S. 526, 533, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). See also Advisory Committee’s Note to Rule 803, 56 F.R.D. 303, 309 (1972) (discussing admissibility of police records during explanation of Rule 803(6)). Of course, Congress must also be deemed to have continued the restriction the doctrine of Palmer v. Hoffman places on the use of police reports by the prosecution. The clear congressional intent to preclude the Government from using the reports of law enforcement personnel in a criminal trial, see infra, supports this conclusion. Rule 803(8) of the FRE creates a specific hearsay exception for “public records and reports.” While this provision appears to overlap rather than to dimmish 803(6), see Colvin v. United States, 479 F.2d 998, 1002 (9th Cir. 1973); 4 J. Weinstein & M. Berger, Wein-stein’s Evidence fl 803(8)[03] at 803-185 (1975) (“Public records could, of course, as in the past be admitted under the regular entries exception.”), it is also useful to consider the admissibility of police records under this provision. Rule 803(8) provides: It is not clear whether a police report like that prepared by Officer Carr falls under 803(8)(B) or 803(8)(C). 803(8)(C) seems to be the more appropriate provision since the Form 251 contains information “ . . . resulting from an investigation made pursuant to authority granted by law.” The rule’s reference to “factual findings” may authorize the admisr sion of the investigator’s conclusions based on the information he derived from firsthand observers, see J. Weinstein and M. Berger, supra, at 803-184 to 185, but it should not be read to require that the information obtained during an investigation be interpreted by the investigator before his report can be admitted. On the other hand, 803(8)(B) may also be considered applicable since the Form 251 contained Carr’s report of what he heard and saw Williams tell him. Were we required to choose which section of the rule to apply, we would settle on 803(8)(C). That portion of the rule deals explicitly with reports based on investigations, whereas 803(8)(B)’s most natural reading is that it is concerned with officials’ reports of their own firsthand observations of events. Cf. 120 Cong.Rec. H564 (daily ed. Feb. 6, 1974) (remarks of Reps. Brasco and Dennis) (originally proposed 803(8)(B) would admit as evidence against defendant police officer’s report “ . that he saw Mr. X with a gun on such and such an occasion . . . ”). 803(8)(C) explicitly adopts the result we have reached: the report is admissible, but only “against the Government in criminal cases.” On its face, 803(8)(B) appears to require a different conclusion. We are convinced, however, that 803(8)(B) should be read, in accordance with the obvious intent of Congress and in harmony with 803(8)(C) to authorize the admission of the reports of police officers and other law enforcement personnel at the request of the defendant in a criminal case. As proposed by the Advisory Committee and submitted to Congress by the Supreme Court, 803(8)(B) would have exempted from the hearsay rule “ . . . reports ... in any form, of public offices or agencies, setting forth . . . (B) matters observed pursuant to duty imposed by law.” H.R.Doc.No.93-46, 93d Cong., 1st Sess. 29 (1973). Concerned that this language would allow the prosecution to use a report “ . . .to prove its case in chief with the possibility of no other evidence being presented,” 120 Cong.Rec. H564 (daily ed. Feb. 6, 1974) (remarks of Rep. Brasco), the House added the present language. During the debate Representative Dennis, who supported amending the proposed rule, indicated that the amended version would still allow a defendant to “ . . . use the report to contradict [the reporting officer] and cross-examine him.” Id. See also id. (remarks of Reps. Hunt and Brasco). The House’s changes survived conference with the Senate, and when he explained the Conference Committee’s re*969port to the House, Representative Hungate stated that “[a]s the rules of evidence now stand, police and law enforcement reports are not admissible against defendants in criminal cases. This is made quite clear by the provisions of rule 803(8)(B) and (C).” 120 Cong. Rec. H12254 (daily ed. Dec. 18, 1974) (emphasis added). Thus, the apparently absolute language of 803(8)(B) had its origin in congressional concern that use of reports against defendants would be unfair. Moreover, as Representative Hungate’s statement indicates, the prohibitory language of 803(8)(B), added on the floor of the House, should be read in conjunction with the more carefully drafted parallel provision of 803(8)(C). See also J. Weinstein & M. Berger, supra, at 803-186 (referring to the parts of 803(8)(B) and (C) considered here as a single restriction against the government). Since there is no apparent reason to allow defendants to use the reports admitted by 803(8)(C) but not those governed by 803(8)(B), we conclude that a police report, like that of Officer Carr, is an exception to the new hearsay rules when introduced at the request of the defense. Thus the FRE reinforce our view that the police records offered by appellant are admissible in this case.

Under the FRE, unlike the common law, writings used to refresh memory prior to testifying as well as those used on the stand will be admissible, in the court’s discretion, on the motion of the opposing party. FRE Rule 612. Thus, as is typical, whenever an officer reviews his P.D. Form 251 prior to testifying, whether or not he refers to it on the stand, it will hereinafter be admissible.

The Form 251 and the radio transcript may have been admissible as well to impeach Officer Carr.

The court’s discretion lies in judging whether the document offered has the inherent probability of trustworthiness. LeRoy v. Sabena Belgian World Airlines, supra note 14; McDaniel v. United States, 5 Cir., 343 F.2d 785, cert. denied, 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965); Puggioni v. Luckenbach S.S. Co., 2 Cir., 286 F.2d 340 (1961); United States v. Newman, 5 Cir., 468 F.2d 791 (1972), cert. denied, 411 U.S. 905, 93 S.Ct. 1527, 36 L.Ed.2d 194 (1973).

See also Howard v. United States, 128 U.S.App.D.C. 336, 340-341, 389 F.2d 287, 291-292 (1967); Christoffel v. United States, 91 U.S.App.D.C. 241, 248-249, 200 F.2d 734, 740-741 (1952).

We note that the trial court did not attempt to comply with the jury’s request in any manner. It could, for instance, have had read to the jury those portions of the transcript in which Williams was examined about the inconsistencies between his testimony and the documents.

Of the United States Court of Claims, sitting by designation pursuant to 28 U.S.C. § 293(a).