Federal Evidence Review

First Circuit notes that booking information and photograph, as a “routine observations that are inherently non-adversarial,” was not excludable under the law enforcement exception, in United States v. Dowdell, 595 F.3 _ (1st Cir. Feb. 12, 2010) (No. 08-1855)

FRE 803(8) admits public reports of “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” However, the rule contains a law enforcement exception which excludes “in criminal cases matters observed by police officers and other law enforcement personnel.” The First Circuit recently considered whether this exception barred booking information and a photograph.

In the case, defendant Dowdell was charged with distribution of cocaine base based on an undercover investigation by Boston Housing Authority Investigator Monteiro who used a surveillance video in his car to record some of the transactions involving cocaine and crack cocaine from individuals in a housing project. Defendant Dowdell, known as “Smoke,” sold some crack cocaine to the undercover investigator. “Smoke” was only partially seen on the video footage during one transaction. Defendant Dowdell was arrested based on an outstanding warrant. His booking sheet referred to a “blue plaid shirt” also included a booking photo was obtained showing him “wearing a blue checkered shirt.” The investigator identified the defendant in the photograph as the person who purchased drugs from him. After the defendant was charged, he presented a misidentification defense at trial.

At trial, the defendant moved to exclude a redacted version of the booking sheet under so-called “law-enforcement exception” of FRE 803(8), which bars “matters observed by police officers and other law enforcement personnel” in criminal cases which are “observed pursuant to duty imposed by law as to which matters there was a duty to report.” Dowdell, 595 F.3 at _.

The trial court concluded “that the law enforcement exception was not meant to encompass routine, non-adversarial documents, and on that basis found the booking sheet admissible.” Dowdell, 595 F.3 at _.

The First Circuit noted that it had “yet to consider whether the law enforcement exception applies to an ostensibly objective, non-adversarial document such as a booking sheet.” Dowdell, 595 F.3 at _. The First Circuit was persuaded by other circuits which had concluded that “the limitation in Rule 803(8)(B) does not exclude routine observations that are inherently non-adversarial,” including in the following cases:

• United States v. Harris, 557 F.3d 938, 941 (8th Cir. 2009) (admitting probation file information because while the rule “does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters”)

• United States v. Weiland, 420 F.3d 1062, 1074-75 (9th Cir. 2005) (admitting Department of Corrections’ “penitentiary packet” including defendant’s four state Second Degree Burglary convictions, fingerprints, and photograph as records of “routine and nonadversarial matters” rather than “police officers’ reports of their contemporaneous observations of crime that might be biased by the adversarial nature of the report”) (internal quotation marks omitted)

• United States v. Brown, 9 F.3d 907, 911-12 (11th Cir. 1993) (property receipt prepared during booking for firearm admitted since “the police custodian in the instant case had no incentive to do anything other than mechanically record the relevant information on the property receipt”)

• United States v. Quezada, 754 F.2d 1190, 1193–94 (5th Cir. 1985) (admitting an INS form indicating arrest and deportation noting the warrants were both “reliable and admissible because the official preparing the warrant had no motivation to do anything other than ‘mechanically register an unambiguous factual matter’”) (citation omitted)

• United States v. Orozco, 590 F.2d 789, 793–94 (9th Cir. 1979) (admitting Customs Service computer cards of license numbers of cars crossing the border since “the simple recordation of license numbers . . . is not of the adversarial confrontation nature which might cloud [an officer’s] perception”)

• United States v. Grady, 544 F.2d 598, 604 (2d Cir. 1976) (admitting serial number and receipt of weapons because “they did not concern observations . . . of the appellants’ commission of crimes,” but rather were “strictly routine records”)

The circuit rejected a defense argument that the plain language of the rule barred the admission of the booking sheet information and photograph. The circuit concluded that a plain meaning construction “would violate the rule’s plain purpose.” Dowdell, 595 F.3 at _ (citing United States v. Smith, 521 F.2d 957, 968 n.24 (D.C. Cir. 1975) (“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.”)).

The First Circuit was persuaded by an unpublished Fifth Circuit decision which concluded that “booking information [i]s taken in a routine, nonadversarial setting.” Dowdell, 595 F.3 at _ (citing United States v. Haughton, 235 Fed. App’x 254, 2007 WL 2186250, at *1 (5th Cir. Jul. 30 2007) ). As the First Circuit explained:

“The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might. A booking sheet does not recount the work that led to an arrest so much as the mere fact that an arrest occurred. As a result, unlike the investigative reports that lie at the heart of the law enforcement exception, booking sheets raise little concern that suspicion of guilt will function as proof of guilt.”

Dowdell, 595 F.3 at _.

The circuit also found no support in the record for the defense contention that the particular booking information in the case was completed with the view toward establishing his identity for prosecution, or was untrustworty. As the circuit noted, “An entirely conjectural and uncorroborated conspiracy theory does not transform an otherwise trustworthy document into an untrustworthy one.” Dowdell, 595 F.3 at _.

Finally, the circuit noted that it did not need to resolve which party bore the burden of showing the record was untrustworthy under FRE 803(8) since “neither the booking sheet itself nor the known facts surrounding its preparation suggest untrustworthiness by a preponderance of the evidence.” Dowdell, 595 F.3 at _. Most circuits have imposed the burden of showing untrustworthiness under Rule 803(8) on the party opposing admission.