Say a cop conducted a crime investigation, interviewed the person of interest (later charged with the crime) and wrote it all down in a report.

When the trial comes, the cop is no longer available (resigned and can't be located, dead etc.).

Will the report be inadmissible?

My understanding is yes, because it will be hearsay: a statement by a person other than a witness, offered to prove the truth of it contents (the contents being that the defendant indeed said the words that the report says he did when interviewed).

But maybe there is some sort of exception to the hearsay rule which allows such reports in? Guess the scenario in question will not be uncommon.

1 Answer 1


Police reports are treated as "Business Records" and are therefore not excluded by the hearsay rule, regardless of the availability of the declarant.

Federal Rules of Evidence, Rule 803: Exceptions to the Rule Against Hearsay

Business Records Exception

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

I suppose a valid defense in this case would be to bring into question the "trustworthiness of the preparation" (via 803(8)(B)), but it is still admissible.

Admissibility of Police Reports

A number of courts have held that a police report otherwise excluded by Rule 803(8) is admissible under the hearsay exception for recorded recollection in Rule 803(5).

On the other hand...

At least one court has held that the recorded recollection exception does not allow the admission of a police report that is excluded by Rule 803(8). Offering another reason for the exclusion, the court observed that such reports, particularly when they concern on-the-scene investigations, are considered less reliable than records prepared by other public officials because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and the likelihood of the report’s use in litigation. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1086–87 (9th Cir. 2000); see also State v. Harper, 96 N.C. App. 36, 40–41(1989) (recognizing this rationale in finding police report inadmissible under Rule 803(8); court did not address admissibility under other rules).

Recognizes the conflict of interest police have when recording evidence against a defendant, so it may be possible to argue admissibility in that way, but it seems most courts do not follow this line of thinking.

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