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Is it possible to object to the prosecution's use of a document excluded under 803 (8) under hearsay grounds and then introduce it during the defense?

Apologies in advance, as I do not have any trial experience (I'm a student).

FRE 803 (8) (A) (iii) specifically includes "factual findings from a legally authorized investigation" only when it is used "against the government in a criminal case." I've also heard it generally doesn't make sense to object to an exhibit and introduce it later on your side of the case.

However, I feel an argument can be made to prevent the prosecution from overly relying on facts found during a legally authorized investigation, which I understand is one of the motives for excluding certain public records from falling under 803 (8). Is it then possible to prevent the prosecution from using the document only to later introduce it on the defense?

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Sean Kim
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1 Answers1

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FRE 803 is about when not to exclude

You can not exclude a document for 803 (8) A iii. A document that falls under that provision is admissible despite it being hearsay. Whatever is in that document can be evidence, if it fulfils all of the following:

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

The bolded section says, that a public record may be used in either a criminal trial in either a civil trial (Alice sues Bob) or a criminal case where the other party is the government (People v Alice). It does not mean that only the defense can bring the item that would otherwise be hearsay.

Bringing excluded evidence waives the objections

Let's for one moment assume that there is a document that spells out in minute detail that Alice is guilty of something and can't be read any other way. Alice manages to have it excluded as hearsay under FRE 802, for it does allegedly not qualify for an exception under FRE 803 (B) - which is the only exclusion factor for an otherwise public record.

The moment that Alice tries to introduce the document, it opens the gates for the prosecution to ask all the questions regarding that document in cross-examination - Alice effectively waives the issue that the item was hearsay.

Trish
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