708.9Public Records [Rule 803(8)]

The Basic Rule

Rule 803(8) – Public Records and Reports

G.S. 8C-803(8) (reformatted for clarity).

Requirements for Admissibility

Types of Records 

Rule 803(8) applies to records, reports, and data compilations of public offices and agencies “in any form,” provided the records set forth one of the three permissible types of information discussed below. G.S. 8C-803(8). See, e.g., State v. McLean, 205 N.C. App. 247 (2010) (booking information linking defendant’s name to her photograph admitted as public records); In re J.S.B., 183 N.C. App. 192 (2007) (investigation and autopsy reports from coroner’s office admitted as public records); State v. Forte, 360 N.C. 427 (2006) (SBI lab report documents admitted as public records).

Three Categories of Records

To be admissible as public records under Rule 803(8), the records must set forth one or more of the following three classes of information:

1. Activities of Office or Agency
   Records that document the regular activities of a public office or agency are admissible as public records under Rule 803(8)(A). See, e.g., State v. Watson, 179 N.C. App. 228 (2006) (prison records: “penitentiary packet” that contained records kept in the regular course of business by a prison was admissible under public records exception); State v. Oxendine, 112 N.C. App. 731 (1993) (tax records: “The tax department is a public office and its records are admissible under the public records exception to the hearsay rule.”); State v. Woody, 102 N.C. App. 576 (1991) (DMV records: “Instead of being error, receiving the civil part of the revocation order into evidence to show that defendant's driver's license was revoked and he knew it[,] was authorized by the public records exception to the hearsay rule, Rule 803(8)(A)”).
2. Pursuant to Duty Imposed by Law
   Records of public offices or agencies that set forth “matters observed pursuant to duty imposed by law” and which the agency had “a duty to report” are admissible as public records under Rule 803(8)(B). See, e.g., In re J.S.B., 183 N.C. App. 192 (2007) (medical examiner has statutory duty to “make inquiries regarding the cause and manner of death” and reduce its findings to a report, making it “precisely the type of records intended to be admitted under Rule 803(8)”); see also State v. Lewis, 7 N.C. App. 178 (1970) (“Wherever a public officer is required or authorized to keep a record of his official transactions and observations, the record so kept is admissible as evidence of the facts recorded which are within the scope of the authority of duty.”) (internal quotation omitted).
   However, in criminal cases, this subsection specifically excludes records of “matters observed by police officers and other law-enforcement personnel.” G.S. 8C-803(8)(B). The purpose behind this limitation is to “prevent prosecutors from attempting to prove their cases through police officers’ reports of their observations during the investigation of crime.” State v. Smith, 312 N.C. 361 (1984). See, e.g., State v. Harper, 96 N.C. App. 36 (1989) (excluding non-testifying officer’s notes summarizing drug deals with the defendant); State v. Maness, 321 N.C. 454 (1988) (excluding, under Rule 803(8), police report containing defendant’s self-serving statement made to officer during the investigation).
   Notwithstanding this restriction, public records documenting routine or ministerial matters are not excluded by Rule 803(8)(B) merely because the matter was observed by a law enforcement agency. See, e.g., State v. Mclean, 205 N.C. App. 247 (2010) (finding it was not plain error to allow defendant’s arrest photo and booking information into evidence under this exception: “fingerprinting and photographing a suspect, and cataloguing a judgment and sentence, are the types of routine and unambiguous matters which the public records hearsay exception in Rule 803(8) is designed to allow, and were not meant to be prohibited by the exclusion in subsection (B)”); State v. Forte, 360 N.C. 427 (2006) (SBI reports regarding chain of custody and DNA analysis were not excluded from evidence by Rule 803(8)(B) – reports contained routine non-adversarial matters, and their use in court was only one potential purpose among many); see also State v. Smith, 312 N.C. 361 (1984) (rules of evidence were not intended to “change the common law rule allowing admission of public records of purely ministerial observations.”) (internal quotations omitted).
3. Factual Findings Against the State
   Finally, Rule 803(8)(C) provides that “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible as public records, but only when they are offered against the state in criminal cases. G.S. 8C-803(8)(C). See, e.g., State v. Acklin, 317 N.C. 677 (1986) (reversible error to exclude SBI lab reports on hair and fiber analysis – reports were factual findings resulting from an investigation pursuant to lawful authority, and they were being offered by the defense against the state in a criminal case); see also G.S. 8C-803(8), Official Commentary (noting that under Rule 803(8)(C), the term “factual findings” is “is not intended to preclude the introduction of evaluative reports containing conclusions or opinions”). But see State v. Hunt, 339 N.C. 622 (1994) (city manager’s report reviewing police investigation of a murder not admissible because it was not the result of authority granted by law, and it lacked “assurance” that its factual findings would be admissible).

Authentication

Rule 901(b)(7) sets forth the rules governing the authentication of public records or reports. Public records or reports may be authenticated by “evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office…is from the public office where items of this nature are kept.” G.S. 8C-901(b)(7). The rule further applies to any “purported public record, report, statement, or data compilation, in any form.” Id.

Thus, a public record may be authenticated “by the testimony of its official custodian that it is a part of the records or files of the custodian's office.” State v. Oxendine, 112 N.C. App. 731 (1993) (“Public records are regularly authenticated by proof of custody, without more”), quoting G.S. 8C-901(b)(7), Official Commentary. See also State v. Joyner, 295 N.C. 55 (1978) (birth certificate offered to establish defendant’s age was properly authenticated by records custodian and admissible as a public record); State v. Lewis, 7 N.C. App. 178 (1970) (“(i)f the original document or record itself is produced, its authenticity may be proved by the testimony of the official custodian that it is a part of the records or files of his office”) (internal quotation omitted).

Alternatively, rather than appear in court and testify, the custodian of the public records may be served with a subpoena to produce the records under Rule of Civil Procedure 45(c)(2). The custodian may respond to that subpoena by providing a certified copy of the records, accompanied by an affidavit attesting that the provided records are true and correct copies made in the regular course of business (or, if there are no such records, an affidavit to that effect). See N.C. R. Civ. Pro. 45(c)(2) (further stating that, unless objectionable on other grounds, the provided records are “admissible in any action or proceeding without further certification or authentication”).

Additionally, under Rule 902(1), public records bearing an official seal of the office or agency are self-authenticating and require no further evidence of their authenticity. See, e.g., State v. Watson, 179 N.C. App. 228 (2006) (“Extrinsic evidence of authenticity is not a condition precedent for the admissibility of documents bearing seal and certified copies of public records.”); State v. Black, 182 N.C. App. 347 (2007) (unpublished) (“documents that, as here, bear an official seal are self-authenticating and do not need further authentication by a custodian of those records”). But see In re Yopp, 217 N.C. App. 489 (2011) (error was waived by failure to object, but bank merger documents printed from the internet were not admissible as public records: “the mere fact that a document is printed out from the internet does not endow that document with any authentication whatsoever”).

Limitations on Admissibility

Lack of Trustworthiness

Documents, writings or data compilations that would otherwise be admissible as public records under Rule 803(8) are not admissible if “the sources of information or other circumstances indicate lack of trustworthiness.” G.S. 8C-803(8). This restriction on admissibility is comparable in purpose and application to the trustworthiness requirement discussed in the preceding Evidence entry on Business Records [Rule 803(6)]. The trustworthiness provision “applies to all three parts of the exception.” G.S. 8C-803(8), Official Commentary. “[G]uarantees of trustworthiness are based on a consideration of the totality of the circumstances but only those that surround the making of the statement and that render the declarant particularly worthy of belief.” State v. Little, 191 N.C. App. 655 (2008) (excluding, on lack of trustworthiness grounds under Rule 803(8), witness statement taken by SBI agent several hours after the shooting while witness was sitting inside agent’s vehicle), quoting State v. Roper, 328 N.C. 337 (1991).

Conversely, if there is no genuine reason to dispute the reliability of the underlying information provided or the system used to record that information, the trustworthiness requirement is satisfied and will not bar admissibility of the evidence under Rule 803(8). See, e.g., State v. DeJesus, 265 N.C. App. 279 (2019) (photocopy of Honduran birth certificate to prove victim’s age was properly admitted under 803(8) when there was no reasons to doubt trustworthiness of document, and it was corroborated by other evidence such as witness testimony of victim’s apparent age); State v. Watson, 179 N.C. App. 228 (2006) (admitting prison “penitentiary packet” as a public record, and finding no indications that records lacked trustworthiness); State v. Acklin, 317 N.C. 677 (1986) (allowing SBI reports to be admitted under Rule 803(8)(C), “given the impartiality of the SBI chemists and the right to examine and cross-examine witnesses” there were “adequate assurances of trustworthiness”).

Excluded under Rule 803(6)?

The Official Commentary to Rule 803(8) states that “[p]ublic records and reports that are not admissible under Exception (8) are not admissible as business records under Exception (6).” G.S. 8C-803(8), Official Commentary.

However, it remains unclear whether North Carolina’s courts have adopted the Commentary’s view that documents like police reports that are inadmissible under Rule 803(8) are also precluded from being admitted as business records under Rule 803(6). Compare State v. Forte, 360 N.C. 427 (2006) (quoting the Commentary on this issue, and noting that “we assume without deciding that this Comment reflects the intent of the General Assembly”) with State v. Wise, 178 N.C. App. 154 (2006) (rejecting the argument that the “sex offender registration worksheet” prepared by law enforcement, which was excluded under Rule 803(8), could not be admitted under Rule 803(6): “The legislature chose not to limit the applicability of Rule 803(6) to police records and reports which qualify as records of regularly conducted activity. Therefore, there is no merit in defendant's argument that Rule 803(6) is limited by Rule 803(8).”); see also State v. Lyles, 172 N.C. App. 323 n.1 (2005) (similarly holding that Rule 803(8) does not preclude the introduction of police reports if they qualify as business records under Rule 803(6), because Rule 803(8) was not intended to “change the common law rule allowing admission of public records of purely ‘ministerial matters’”), citing State v. Smith, 312 N.C. 361 (1984).

For additional case law and further discussion of this issue, including whether Crawford and the confrontation clause might independently bar the introduction of police reports as business records, see John Rubin, “Evidence Rule 803(8) and the Admissibility of Police Reports,” N.C. Criminal Law Blog, March 7, 2017