The State of Dirtybottom brings a criminal action for trespass against Pesky Professor. The indictment avers that the aforesaid Pesky Professor negligently, carelessly, recklessly, knowingly, willfully, deliberately, malevolently, and malignantly entered the premises of Dirtybottom State University vi et armis after the aforesaid Professor had been terminated by said Dirtybottom State University for his failure to hold his classes.

Pesky pleads not guilty. At the trial Pesky denies failing to hold class; indeed, he offers affirmative evidence suggesting that he regularly met with his students at Joe's Bar. Moreover, Pesky denies that he entered Dirtybottom State University -- DSU -- after the university fired him. However, counsel for the State of Dirtybottom -- a public prosecutor -- calls Commander Conrad, the head of DSU's campus security force. Commander testifies that automobile access to Dirtybottom State is controlled by the campus police; that DSU's police officers, who are employees of the State of Dirtybottom, man (and woman) gates at all roads leading into DSU; and that these police officers regularly, routinely, and invariably record the identities of all cars and occupants of such cars that enter the pristine premises of Dirtybottom State. Commander further testifies that he is the custodian of these records and that they show that Officer Jan van Mann noted in writing, "Green Camaro with license plate number B3645RST entered campus at 11:03 a.m. on June 15, 2001. Said driver of said car identified himself as David Drivel and his passenger as Pesky Professor."

Is the record putatively showing Pesky Professor's entry onto the campus admissible?

There is a possibility that the record is not admissible.

Why?

The problem is not that the record in question is not a business record.

The problem is also not that DSU may have an interest in preventing Pesky from entering the campus or in having him be convicted of improperly entering the campus. Notwithstanding any intimation to the contrary by Justice Douglas in Palmer v. Hoffman, 318 U.S. 109 (1943) [see CB pp. 667-669], the possible or actual bias of the custodian of regularly-kept records or of the organization or entity that maintains regularly-kept records does not require the exclusion of such records as hearsay. Exclusion on this ground is required or permitted by FRE 803(6) only if the "circumstances of preparation indicate lack of trustworthiness." The possible influence of bias on the preparation of business records is not a sufficient ground for excluding business records as hearsay. See the ACN to FRE 803(6). See also CB §5.05[2][f] at pp. 686-687.

The problem with the police record is twofold.

First, FRE 803(8), which deals with public records and reports, provides that government records are not admissible in criminal cases to prove "matters observed by police officers and other law enforcement personnel." See FRE 803(8)(B)(proviso). It is generally held that this prohibition cannot be evaded on the theory that police records are business records as well as government records. (But note that some government and police records may be used against the government in criminal cases and against any party in civil cases.)

But there is a second difficulty with the admissibility of a record of the notation made by Jan van Mann:

Suppose that Dirtybottom is a private university; suppose that its name is therefore, simply, Dirty University. Further suppose that the man manning the entry gate -- Jan van Mann -- is not a government employee, and suppose that Mann is merely a parking clerk rather than a police officer and that he has no law enforcement powers. Is Mann's notation -- the notation saying that David Drivel identified himself as David Drivel and his passenger as Pesky Professor --, is this written notation admissible?

The problem here can be couched in either of two ways. The problem is either that (i) the original source of the information - Drivel - is not within the business records pipeline or (ii) the original source -- Drivel -- does not have a "business duty" to record or report information accurately.

The basic rationale for the business records exception is that employees or agents of organizations are like cogs in a machine: subordinates are trained to act in certain ways and the organization or institution to which they belong has a system of rewards and penalties to induce the human cogs within its control to act like cogs, i.e., to keep careful records. People who are not in this pipeline - people who do not have a business duty to observe, report, and record matters accurately - are, by this theory, no better, no more trustworthy, than an ordinary hearsay declarant. Hence, despite some ambiguity in the literal language of FRE 803(6), it is well settled that when a person within a business pipeline records a matter reported by a person outside of the business pipeline, the business records exception does not apply: garbage in, garbage out; ergo: hearsay garbage in, hearsay trash out. This was the principle originally established by a case called Johnson v. Lutz, see ACN [Advisory Committee Note] to FRE 803(6). [To read the Lutz opinion, see CB at pp. 660-663.]

Johnson v. Lutz dealt with a police report as a business record. Furthermore, that case dealt with an entirely different statute - a state statute, New York's Commonwealth Fund Act. [The Commonwealth Fund Act long predates FRE 803(6).] Nonetheless, the principle of Johnson v. Lutz was carried over into FRE 803(6). See, again, the ACN to FRE 803(6).