Case Law Update: Georgia Court Of Appeals Confirms Observations By Officer In Police Report Are Admissible Exceptions To Hearsay

In Maloof v. Metropolitan Atlanta Rapid Transit Authority, A14A2233 (Ga. Ct. of Appeals, Feb. 24, 2015), an automobile accident case, the Georgia Court of Appeals held that pursuant to O.C.G.A. § 24-8-803(8) a police report falls under the public records exception to the hearsay rule and is admissible. The Court noted that the references in the report to observations made by the police officer directly are admissible as exceptions to hearsay pursuant to the statute. The Court noted that the report also contained statements from third-parties but that those were not challenged in the case and as such the Court made no ruling on the admissibility of the third party statements in the police report.

The Court’s decision in Maloof, follows established law in the federal courts under the nearly identical Federal Rule of Evidence 803, but represents one of, if not the, first decision on this issue under Georgia’s new evidence code.

O.C.G.A. § 24-8-803(8) like the federal rule, provides that: “Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth:

(A) The activities of the public office;

(B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation; or

(C) In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”

Earlier federal cases on this issue are consistent with the holding in Maloof and also indicate that while the Court in Maloof declined to rule on the issue, that third-party statements in a police report do not fall under the hearsay exception and would be inadmissible if challenged.

In Ramrattan v. Burger King Corp., 656 F.Supp. 522, 530 (D. Md. 1987) the court found that under the rule, “the contents of witnesses’ statements to the police are not activities of the office or agency, nor are they matters observed by the officer. Whether they are “factual findings resulting from an investigation” is a more difficult question.” The court found that a simple recording of witness statements or comments was inadmissible hearsay, but if the officer had interviewed witnesses, judged their credibility, observed physical aspects of the accident scene and made an independent conclusion about what happened that might be admissible as a factual finding.  See also U.S. v. Smith, 521 F. 2d 957 (D. DC. 1975) which reached the same conclusion.

Similarly in Cabannis ex rel Estate of Cabaniss v. City of Riverside, 497F.Supp.2d 862, 875-76 (6th Cir. 2006) the Court held that statements of third-parties are not admissible under the evidence rule, even thought they might be contained in a police report.

In U.S. v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983) the Court held that “It is well established that entries in a police report which result for the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” (Citations omitted).

The Court in Maloof cited to Jonas v. Isuzu Motors, Ltd., 210 F.Supp.2d 1373, 1378 (III)(A) (M.D.Ga. 2002) in which it was held that  a police report containing a diagram of the accident was admissible under Fed. R. Evid. 803(8) because it was prepared from the officer’s own personal observation of the scene.

We continue to follow Georgia Appellate Court decisions for rulings on how Georgia’s new evidence code, which became effective in early 2013, is applied by the Georgia Courts and will provide additional decisions as they are issued.

Lara P. Percifield