The admissibility of NTSB fact reports depends at least in part on the judge’s interpretation of the Federal Rules of Evidence. Many practitioners are not aware that the Federal Rules of Evidence were “restyled” and rewritten in plainer, easier-to-understand language in 2011.
Although the substance of the Rules largely did not change, the restyling meant that some subsections were deleted. A formerly popular subsection that was deleted was FRE 803(8)(C) regarding the hearsay exception for public records that was used to admit NTSB fact reports. Now, that exception is found under FRE 803(8)(A)(iii) and FRE 803(8)(B).
FRE 803(8)(C) used to provide, in part, that:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
“* * * * *
“(8) Public records and reports.—Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth
“* * * * *
“(C) in civil actions and proceedings and against the Government in criminal cases, 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.”
The new, restyled Rule 803(8) provides, in part, that:
“(8) Public Records. A record or statement of a public office if:
“(A) it sets out:
“* * * * *
“(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
“(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.”
The Committee Note to the restyled Rule 803 provides that:
“The language of Rule 803 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.”
Therefore, the 2011 deletion of FRE 803(8)(C) does not change important cases regarding the NTSB admission of fact reports, such as Beech Aircraft Corp. v. Rainey, 488 US 153, 170 (1988). In that case, the Supreme Court held that an investigative report into the cause of a naval aircraft crash was admissible under FRE 803(8)(C) despite the fact that it contained conclusions drawn from the facts investigated or expressed opinions concerning those facts. 488 US at 170. At the outset, the Court noted that the term “factual findings” in the rule should not “be read to mean simply ‘facts.’” Id. at 163-64. Continuing, the Court stated that, “[a] common definition of ‘finding of fact’ is, for example, ‘a conclusion by way of reasonable inference from the evidence.” Id. It further noted that “the Rule does not state that ‘factual findings’ are admissible, but that ‘reports … setting forth * * * factual findings’ are admissible.” Id. at 164 (emphasis in original). “On this reading, the language of the Rule does not create a distinction between ‘fact’ and ‘opinion’ contained in such reports.” Id. The Court also looked to the legislative history of Rule 803 and found that it “contain[s] no mention of any dichotomy between statements of ‘fact’ and ‘opinion’ or ‘conclusions.’” Id. at 166. It thus concluded that, “unless the sources of information or other circumstances indicate lack of trustworthiness,” investigative reports are admissible regardless of whether they contain facts, opinion, or both. Id. at 167.
Therefore, although practitioners can no longer cite to FRE 803(8)(C), the substance of the Rule is still good law under the restyled FRE 803(8) and seminal holdings such as Rainey continue to be good law as well.