holding that full-time forensic chemists employed by Texas Department of Public Safety were law-enforcement personnel whose reports were not admissible under either the public-record hearsay exception, rule 803(8)(B), or the business-record hearsay exception, rule 803(6)
How later courts described this case
- holding that full-time forensic chemists employed by Texas Department of Public Safety were law-enforcement personnel whose reports were not admissible under either the public-record hearsay exception, rule 803(8)(B), or the business-record hearsay exception, rule 803(6)
- noting that Rule 803(8)'s "broad language, read in light of the legislative history as a whole, leads to the conclusion that Congress' broader concern was with the potentially prejudicial influence of an adversarial setting and with a defendant's confrontation rights"
- holding that rule 803(6) may not serve as an alternative route for admissibility of records otherwise barred by the rule 803(8) exclusion of matters observed by police officers
- holding that evidence made inadmissible by Rule 803(8) may not be admitted under Rule 803(6)
Written by the judges who cited it.
The opinion
McCORMICK, Justice,
dissenting.
The end must justify the means:
He only sins who ill intends:
Since therefore ’tis to combat evil,
’Tis lawful to employ the devil. 1
The conclusions reached by the majority today are not justified even by the convoluted means employed. The result was never contemplated at the time of the adoption of the Rules of Evidence and departs completely from the authority granted to *816 this Court to promulgate the Rules. More importantly, the majority must rely on one of the most criticized and rejected cases in Federal jurisprudence to reach its desired result.
The majority holds the evidence in question inadmissible 2 under Rule 803(8)(B) and ultimately concludes that the exclusionary provisions of Rule 803(8)(B) apply to Rule 803(6). Although it may seem extremely technical, the use of the term “inadmissible” is inappropriate when dealing with Rule 803. More appropriately, when discussing the exceptions to the hearsay rule pursuant to Rule 803, we should say that evidence is either “admissible” or “not admissible.” After all, it is clear that the provisions enumerated in Rule 803 are rules of admission and not rules of exclusion, and the subsections of the rule are measures of whether the evidence is admissible. Clearly, evidence is often not admissible under one exception and admissible under another and we do not exclude the evidence just because it is not admissible under one exception.
In addressing the exact issue presented in this case, Joseph and Saltzburg 3 note:
“Finally, because Exception (8) is a rule of admissibility, not of exclusion, the question arises whether evidence not admissible under Exception (8) may be admissible under other provisions of the Rules — particularly Exceptions (5), (6) and (24). In State v. Therriault, 485 A.2d 986 (Me.1984), for example, a police laboratory report which was excluded as investigative in nature under Exception (8) was ruled admissible under Exception (6).”
For the majority to conclude that the exclusion in Exception (8) of “matters observed by ... other law enforcement personnel” applies to all other exceptions to the hearsay rule escapes logic. Had such an interpretation been intended, the exclusion would appear before the list of exceptions so as to make perfectly clear its application to all exceptions. Such is not the case and such was never intended by the drafters of the Federal Rules or our rules.
Further, the majority asserts that a reexamination of the legislative intent and history supports their conclusion. Nothing could be further from the facts. An examination of the exclusionary amendment found in Exception (8) of the Federal Rules and carried over into oúr rules shows the following: During floor debate in the House of Representatives on February 6, 1974, Congressman Dennis of Indiana offered the amendment, viz:
“On page 94, line 11 of the bill, after the word ‘law’, insert the words ‘excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel’.”
In explaining the purpose of the amendment, Mr. Dennis said:
“I think in a criminal case you ought to have to call the policeman on the beat and give the defendant the chance to cross examine him, rather than just reading the report into evidence. That is the purpose of this amendment.” (Congressional Record — House, Feb. 6, 1974, p. 2387.)
The entire discussion of the amendment focused solely on the officer on the beat making his police report and it is clear that the concern was over assuring confrontation of the policeman who made the report of items he observed while at the scene of the crime. It was never intimated anywhere in any of the debate that the exclusion would be applied other than to public records and reports. Obviously, legislative history if reexamined disputes rather than supports the majority conclusions.
Looking more particularly at our own rules, legislative history would dictate a completely different result than that the majority reaches today. Pursuant to Chapter 685, Acts of the 69th Legislature, Regular Session (House Bill 13), the Court of Criminal Appeals was granted “full rule-making power in the promulgation of rules of evidence in the trials of criminal cases, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.” Thereafter this Court promulgated the Rules of Criminal Evidence. In doing so, we adopted the Civil Rules almost in their entirety.
As was recognized at the time of the adoption of our rules, and as had been *817 recognized until today, Rule 803(6) was the hearsay exception embodiment of former Article 3737e, V.A.C.S. See Goode, Wellborn and Sharlot, 33 Texas Practice, Texas Rules of Evidence: Civil and Criminal, Section 803.11; and Wendorf, Schlueter and Barton, Texas Rules of Evidence Manual, 3rd ed., p. VIII-66. Under Article 3737e the evidence which the Court today holds “inadmissible” was heretofore admitted. Kent v. State, 374 S.W.2d 671 (Tex.Cr.App.1963), and cases there cited; Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); and Brooks v. State, 642 S.W.2d 791 (Tex.Cr.App.1982).
This Court still has the authority to promulgate rules of evidence. If we are going to change a rule, then we should give the bench, bar and public the notice we are required to -give under House Bill 13, supra. It cannot be justifiably argued that today’s result was anticipated or intended by those who wrote the Rules, or by those of us who promulgated them.
If today’s opinion is intended to combat evil, then we have certainly employed the devil in our fight. For these reasons, among others, I most vigorously dissent. 4
WHITE, J., joins.
. Matthew Prior, Hans Carvel.
. All emphasis is that of the author unless otherwise indicated.
. The Federal Rules in the States, Gregory P. Joseph, Stephen A. Saltzburg, and the Trial Evidence Committee of the American Bar Association Section of Litigation, Vol. 2, ch. 58, p. 56 (1987).
. I do not find it necessary to address the application of United States v. Oates, 560 F.2d 45 (2nd Cir.1977), by the majority. One need only take the time to look Oates up in Sheppard’s Citations and see how often it has been questioned, criticized, abandoned and repudiated by the clear majority of courts and legal scholars in this country examining the issue.