Survey Evidence As Proof Of Notice, Rather Than Proof Of Matter Asserted

In a voting enforcement action, survey of local election administrators as proof that the defendant state officials had notice of election law enforcement problems was inadmissible hearsay to prove the truth asserted (that they had notice of enforcement failures), in United States v. Missouri, 535 F.3d 844 (8th Cir July 29, 2008) (No. 07-2322)

Last week, the Federal Evidence Blog examined a recent case from the Fourth Circuit regarding the admission of survey evidence. The case involved a civil false advertising claim. In assessing whether the survey evidence was sufficient for admission, the circuit noted that as a general matter where a survey sample did not exactly match the population to be represented, the survey was still admissible as long as the sample it was based on was "a sufficiently close approximation" of the population to be represented. Any flaws in the design of the survey went to its weight, not admissibility. PBM Products, LLC v. Mead Johnson & Co., __ F.3d __ (4th Cir. April 20, 2011) (No. 10–1421).

The key limitation of the holding in PBM Products was discerning when the sample and the population to be represented were "sufficiently" close enough? An earlier Eighth Circuit case provided some guidance on this issue. In the case, United States v. Missouri, 535 F.3d 844 (8th Cir July 29, 2008) (No. 07-2322), the crucial question for the circuit in deciding admissibility of a survey was whether the survey fit any exception to the hearsay rule.

In Missouri, the Eighth Circuit demonstrated an approach to the use of survey evidence. Under the circuit's approach, the court considers whether the survey can be admitted by considering:

  1. Whether the survey is not hearsay because the survey is not offered in evidence to prove the truth of the matter asserted; or
  2. If the survey is hearsay, does it fall under an exception to the hearsay rule.

See.e.g., Schering Corp. v. Pfizer Inc., 189 F.3d 218, 230 n.3 (2d Cir. 1999) (noting that if a survey is offered to prove a specific idea in the public mind it is not hearsay but also that it may be admissible under FRE 803(3), as “an exception to the hearsay rule for such statements [i.e., state of mind expressions] rather than excluding the statements from the definition of hearsay, makes sense only in this light.”; also noting that if a survey has guarantees of trustworthiness it may be admitted under the residual exception FRE 807).

In United States v. Missouri, plaintiff United States sued the state of Missouri for violating its obligations under the National Voter Registration Act of 1993 (NVRA). The NVRA requires the state to make a reasonable effort to conduct a general program
of voter list security. Survey results, required under the NVRA as reports for Congress, were admitted by the court “to demonstrate Missouri had notice of possible problems,” but not to prove the truth of the matter asserted.

The NVRA required a report (or survey) by the state’s Election Assistance Commission (EAC) every other year. In various bench proceedings, the trial court concluded Missouri could be held responsible for duties that were assumed by political subdivisions of the state. As a result, the court found the state was not liable for shortcomings in complying with the NVRA that were a result of actions by independent local election officials. The United State's appeal assigned as error the trial court's decision to exclude of the NVRA survey evidence.

The circuit concluded there was no error in the trial court’s exclusion of
the survey evidence. It noted that whether to admit into evidence the survey responses for their truth “represents a close evidentiary question.” The
Missouri survey was beset by delays and by staffing problems. The circuit considered four possible basis for admitting the survey evidence and found each lacking:

  1. Statement By Party OpponentFRE 801(d)(2)(A):
    The survey results were inadmissible as “statements of a party opponent, or statements of a party agent” because the survey respondents were the local
    county election officials, not state-appointed officials working at the county level. The respondents were best viewed as “independent entities” so their statements could not be attributed to the state as a party. Admitting the survey responses on the basis that they were the statements of defendant state of Missouri as a party was “certainly debatable” and the circuit concluded that the trial judge properly exercised her discretion in
    excluding the survey.
  2. Adoptive AdmissionsFRE 801(d)(2)(B): Nor were the survey responses clearly “adoptive admissions” by the defendant state. It was not clear that the state actually adopted the survey responses. As explained by the circuit: “Missouri merely passed the LEAs’ [Local Election Authorities’] survey responses along to the federal government, with no indication the state was adopting the truth of the responses. Missouri even indicated additional time was needed, thus demonstrating a lack of
    certainty in the accuracy of the responses.” United States v. Missouri, 535 F.3d 844, 852 (8th Cir. 2008). In this light, there was no clear abuse of discretion in the trial judge “declining to recognize the survey responses as adoptive admissions.”
  3. Public RecordsFRE 803(8)(A) Or FRE 803(6)Business Records – Neither the business or public records hearsay exceptions applied to the survey results. Both hearsay exceptions require as a foundation that the record be trustworthy. The
    circuit indicated that “the information for the survey responses was hastily gathered, and Missouri requested an extension of time. Declarations by numerous LEAs indicated the survey responses were inaccurate” and there were “unexplained discrepancies between the survey responses and compiled data.” Because these factors made the survey responses’ “trustworthiness … arguable,” the circuit found the trial judge did not abuse her discretion in admitting the survey responses “only to demonstrate Missouri’s knowledge of possible problems” in the implementation of the federal election law and not for the truth of the matters asserted in the survey responses.
Federal Rules of Evidence