Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER V: HEARSAY
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E. Hearsay Exceptions-- Availability of Declarant Immaterial (474)

1. Statements of Present Sense Impressions, Excited Utterances, Statements of Current Physical or Mental Condition, Statements for Diagnosis and Treatment (474)

Problem - Stage Fright (474)

Answer and Analysis:

1) This is hearsay but it would be admissible under FRE 803(1) as a present sense impression. The phrase "immediately thereafter" in the statute covers the time lag between the time of the event and V's statement to G. Nothing has happened in the interval to destroy the spontaneity of the statement.

(2) B's report of G's statement presents a hearsay within hearsay problem because G's statement was based not on her personal knowledge but on V's statement to her. B's statement is admissible, therefore, only if each component statement would be admissible. FRE 805.

V's statement to G is admissible. See (1) above. G's statement to B is arguably admissible as a statement explaining an event (V's death) immediately thereafter. FRE 803(1). Had G made a statement immediately upon returning home it would also be admissible as an excited utterance under FRE 803(2). The fact that she was put to bed, then made the statement upon awakening, vitiates the excitement factor.



Problem - Stagger P (475)

Answer and Analysis:

Admissible under FRE 803(1). Q's statement was a present sense impression of D's condition.



Problem - Husband Harry (475)

Answer and Analysis:

The portion of the statement concerning the brakes is admissible as an excited utterance. The exciting event was Harry's learning that D had been in a collision. Harry's statement, "It must have been our fault", is not admissible for its truth. It is an opinion and Harry is not a party opponent. Harry's statement, we've known those brakes were bad for two weeks, relates to the startling event.



Problem - Snowmobile Crash (475)

Answer and Analysis:

(1) P's first statement has four parts to it. His statement that D ran over him is inadmissible hearsay, neither a present sense impression nor an excited utterance. His statement that he was in agony is recalling a bodily condition rather than an objective event, but is inadmissible hearsay nonetheless. It does not qualify under FRE 803(3) because it was not a "then existing" condition at the time of the statement. Likewise P's statement that he couldn't sleep last night. P's statement that his legs were throbbing could be admitted under FRE 803(3) or 803(1) on the issue of damages.

(2) Those parts of P's statement pertinent to medical treatment would be admissible, whether testified to by W or the physician. The crucial statement is "D ran over me with his snowmobile." That P had been run over by a snowmobile is pertinent. That D ran him over is not. Therefore the statement should be redacted. W or the physician should be permitted to report only that P said he had been run over by a snowmobile.

(3) No difference. The statements are pertinent to diagnosis. The extension of FRE 803(3) to cover statements made to non-treating physicians purely for the purpose of diagnosis in preparation for testifying at trial is one of the most radical extensions of the federal rules.



Problem - Strong Feelings and Future Plans (476)

Answer and Analysis:

(1) Admissible to show A's state of mind, to wit, that A was indeed alienated from P at the time of the s tatement. D should seek an instruction to the effect that the statement can only be considered to show A's s tate of mind and cannot be considered on the question of whether D caused A to be alienated .

See Adkins v. Brett, 194 Cal. 252, 193 P. 251 (1920).

(2) Admissible to show that, at the time the statements were made, H intended to go away on business, thus making it more likely that he did go away on business.

See Fite v. Ammco Tools, Inc., 258 N.W.2d 922 (Nov. 1977).

The second statement points foreward in time and deals only with H's intentions. The first statement points backwards in time and inperentially implicates D.



Mutual Life Insurance Co. V. Hillmon, 145 U.S. 285 (1892)(476)

This classic case is in almost every evidence casebook. It is important that the students understand the procedural posture of the case.

Suit was brought by the widow of the alleged deceased, Walter Hillmon, on several insurance policies taken out within a short time of each other by Hillmon shortly before his trip "out West". The plaintiff claimed that Hillmon and one Brown had left Wichita, Kansas and at a place called Crooked Creek, Colorado, Hillmon had been killed by the accidental discharge of a gun. Brown was the primary witness to the Hillmon's death.

The insurance company denied that its insured was dead and asserted that the whole thing was an attempted fraud. The company maintained that the person who died at Crooked Creek was on Walters, who had been killed by Hillmon and Brown as part of the fraud.

The evidence in question was proffered by the insurance company for the proposition that Walters (who had disappeared at the time of Hillmon's alleged death) was at Crooked Creek with Hillmon. The evidence consisted of two letters by Walters posted shortly before the events at Crooked Creek in which Walters informed his sister and fiancé respectively that he was going west with Hillmon.

The Supreme Court held that the letters should have been admitted as exceptions to the hearsay rule. They proved that Walters had the intention to go with Hillmon at a specified time. The jury could then infer based on experience that Walters had done what he intended to do and gone to Crooked Creek.

Problem - Threats (480)

Answer and Analysis:

The theory of relevance of O's threats is clear. O's statement to W indicates O 's state of mind. O 's state of mind encompasses an intent to injure, V sometime in the future. That makes it more likely that O did in fact injure (in this case kill) V. If O killed V, then D did not. Q.E.D.

The problem of admissibility is one of remoteness: the inference chain is very thin. It is particularly thin in this case because the threat is so weak; kicking somebody "from here to Timbuktu" is hardly a threat to murder. Courts have been reluctant to admit such evidence in criminal cases even when the threat to the victim by the third person was more direct and homicidal. The reluctance is closely related to the even more striking reluctance to admit third-party confessions, discussed in connection with FRE 804(b) (3). See Tague, Perils of the Rulemaking Process The Develovment. Application. and Unconstitutionality of Rule 804(bl(31's Penal Interest Exception, excerpted at p. 468, and Problem - Thick as Thieves (469). The judicial fear is that defendants can too easily manufacture testimony of third-party threats to the victim.

Under the federal rules, the trial judge should make a FRE 403 balance, admitting the evidence of a third-party threat if there is some corroborating evidence of motive, overt acts, opportunity or other circumstances giving significance to the threats.

The problem is adapted from the final scene of "Anatomy of a Murder". See also People v. Perkins, 8 Cal. 2d 502, 66 P.2d 631 (1937); People v. Mendez, 193 Cal. 39, 223 P. 65 (1924); Commonwealth v Santos, 275 Pa. 515, 119 A. 596 (1923).



Problem - The Accusing Hand (480)

Answer and Analysis:

The patient's statement looks backward in time, thus is not admissible on any state-of-mind theory.

The evidence that the patient had been given medicine could be admitted under FRE 803(4) as the statement of a patient made to a physician for the purpose of diagnosis and treatment. The doctors inquiry was part of the doctor's effort to find out what had induced the respiratory arrest. But the name of the person who allegedly gave the medicine would have to be deleted. See Problem - Snowmobile Crash.

See United States v. Narciso, 446 F. Supp. 252 (E.D. Mich. 1977).



Problem - 911 Call (483)

The Point:

Do not assume that just because the witnesses are not there, that their testimony will not be admitted.

Answer and Analysis:

(1) Admitted. Assuming that the prosecution can prove the reliability of the telephone apparatus, relevance would be shown by the time of the call, the address, and recognition of the voice of Christopher. The applicable hearsay exception would be FRE 803(1) - present sense impression.

(2) Admitted. The circumstances of the statement would appear to support the 803(2) - excited utterance - hearsay exception. Relevance would depend on the meaning of "he".

(3) Admitted. Although the visit to the doctor was arguably for court purposes rather than diagnosis and treatment, the fact that the patient was examined and that treatment would have been rendered if needed should be sufficient to bring the statement under the FRE 803(4) - statement for medical diagnosis - exception. Even though the statement refers to the source of the injury rather than the nature of the injury or symptoms, it is relevant to the doctor's treatment - part of which might to be advise the patient to avoid contact with the "boyfriend".

This problem is based on the unreported case of People v. Roberts, Cumberland County Maine Superior Court, in which the foregoing hearsay evidence resulted in a criminal conviction.

 

 


2. Two Processes of Proof: Refreshing Recollection and Past Recollection Recorded



Problem - Negligent Entrustment (484)

Answer and Analysis:

(1) Objection Sustained. The lists are statements made by M about the contents of the boxes. M has not testified that the lists were accurately made, and Mrs. P never had personal knowledge of the contents of the boxes, therefore could not have adopted the lists when the matter was fresh in her memory as a correct reflection of what she knew.

(2) Objection overruled. The lists are used here to refresh the recollection of the witness. FRE 612. The lists need never come into evidence when used in this fashion, thus do not need to qualify under any hearsay exception. What is admitted is M's current testimony about what she put into the boxes, a matter about which she has personal knowledge and can be cross-examined.

(3) Objection Overruled. The lists themselves are offered as the recorded recollection of the witness under FRE 803(5). M's testimony has established the necessary foundational elements for application of the exception: (1) she once had knowledge; (2) she now has insufficient recollection to enable her to testify fully and accurately; (3) she made the lists when the matter was fresh in her mind; (4) she testifies that the lists reflected her knowledge accurately. The list may be read into evidence but not offered as an exhibit, unless offered by an adverse party.

(4) Objection overruled. The analysis requires two steps. Mrs. P testifies that she reported what was going into the boxes contemporaneously with her packing each item into the boxes. These statement if P could remember them, would be admissible for their truth under FRE 8030) as present sense impressions.

M cannot remember the statements, but she made the lists at a time when she had personal knowledge of Mrs. P's statements, and M can testify to the various foundational elements which will permit the lists to be introduced as her recorded recollection of the statements.

See Curtis v. Bradley, 65 Conn. 99, 31 A. 591 (1894).

Note how the type of transaction in which Mrs. P and M engaged could be multiplied in information exchanges in complex organizations. This is essentially what happens in the modern business enterprise. But is too time-consuming to call every log in the machine situation. Thus in this the exception for records of regularly conducted activities, FRE 803(6).



3. Business records (485)



Problem - The Window Washers' Witnesses (486)

Answer and Analysis:

The most efficient proof would consist of calling an officer of the P Window Washing Company who is knowledgeable about the various steps in the process resulting in the computer printouts, and establishing through him the foundational elements necessary to introduce the relevant computer printout as a record of regularly conducted activity under FRE 803(6).

Q. Name

Q. Duties

Q. Do you recognize Plaintiffs Exhibit #1 for Identification?

Q. What is it?

Q. How are you able to recognize Plaintiff's Exhibit #1 as the record of number of windows washed?

Q. Explain the process by which the report was compiled. (This question is risky unless the witness is well prepared - otherwise there is a good likelihood that the witness will miss at least one of the four "legs" to the FRE 803(6) business records hearsay exception)

Q. Is Exhibit 1 prepared by the P. Window Washing Company in the regular course of its business? (Yes, it is leading, but lawyers are generally permitted to lead on routine evidentiary foundations.)

Q. Is it the regular course of P. Company's business to maintain business records of this kind?

Q. Was the information set forth in Exhibit 1 obtained from a person with personal knowledge?

Q. Was the information recorded in Exhibit 1 at or near the time it occurred?

We offer Exhibit 1 for Identification in evidence.

Your Honor, may we read from Exhibit 1 for the jury? (This last step - publishing the evidence to the jury, is most important. It does no good to have something in evidence if the jury does not know about it. Reading is one way an exhibit can be published to a jury. Others are showing (with or without an overhead projector) and passing among the jurors for them to read for themselves.)



Problem - Accident Reports (487)

The point:

This problem tests the application of Palmer v. Hoffman (487) under the federal rules. Under FRE 803(6), the test is "trustworthiness" rather than "routineness." When a report is prepared with an eye toward litigation, it will probably be excluded no matter how routine it is.

Answer and Analysis:

Palmer v. Hoffman held that the regular accident report of a locomotive engineer should not have been admitted under the business records exception because the regular business of the railroad was railroading, not litigating, and the Court felt that the purpose of making the report was preparing for litigation. While taking the engineer's report was a routine practice of the railroad, to Justice Douglas it was not part of the regular business because it was not made "for the systematic conduct of the business as a business... to record events or occurrences, to reflect transactions with others, or to provide internal controls." Justice Douglas was concerned that admitting the evidence under this exception would lead to the admission of all statements to or by lawyers or by any business shrewd enough to install a regular system for recording and keeping statements containing its view of accidents. This would not be consistent with Justice Douglas' view of the purpose of the "shop book" rule. To the Palmer court, if the engineer's report were admitted, regularity of preparation would replace trustworthiness as the basis for the exception.

In the problem, F's report is made out within three hours of the accident on the company's standard form. We may assume that the Bus Co. regularly is involved in accidents and regularly requires its drivers to report them on the standard form in order to "record events. . ., reflect transactions with others, [and] to provide internal controls," such as driver safety surveillance.

E's report is made out one hour after the accident, but it is a special report. The Plumbing & Heating Co. is not involved in many accidents and has no standard reporting form or regular reporting procedure. Thus, there is a great deal more regularity behind Fs report than E's.

FRE 803(6) does not clearly resolve this problem. It admits reports admits reports "kept in the course of a regularly conducted business activity. . . if it was the regular practice of that business activity to make the report." This would seem to exclude E's report, but it does not necessarily mean that F's report is admissible. The Palmer distinction between "regular course of a business" and "regular course of conduct which may have some relationship to a business" could be applied to F's statement to exclude it. Troublesome as Douglas's attempted distinction may be (especially today when the latest in law and economic theory and enterprise liability conceptualizes accidents as a part of business) it is hard to justify different treatment to E and Fs reports.

The problem that E and F's reports share (and the reason that both would probably be excluded ) is the motivation of the reporters. Generally, the routineness of business record-keeping promotes the motivation to be objective and accurate. But, as the lower court pointed out in the Palmer case (quoted in the Advisory Committee's Notes to FRE 803(6), even when accident reports are routinely made, the circumstances cause them to be "dripping with motivations to misrepresent." While the motivation to falsify may be present even in the case of the grocer's account book, the making of a report after an event that is likely to be the subject of a dispute creates special trustworthiness problems. This problem is more than one of the preparer's motivation. In this circumstance, the function of the report is to prepare for litigation, not business.

FRE 803(6) addresses this problem by adding the proviso that evidence covered by the exception will be admitted "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." This, in effect, gives the trial court discretion to exclude evidence otherwise within the letter of the exception. In this case, in addition to the problem of post-hoc reporting of an event headed for liti ation, the sources of the information indicates lack of trustworthiness. Both F and E have every reason to try to exonerate themselves by blaming the other.

For cases holding that regularity of preparation for business purposes rather than for litigation purposes is an important element of FRE 803(6)'s trustworthiness requirement, see Square Lines 360 v. Chicum, 691 F.2d 362 (8th Cir. 1982); Southern Pacific Communications Co. v. AT&T, 556 F. Supp. 825, 1041 (D.D.C. 1982).



Problem - Loss Memos (490)

Answer and Analysis:

Objection sustained. This document was prepared with an eye toward litigation. The preparer was a party to the litigation. The preparation was not in the ordinary course of business, but in the extraordinary situation of the termination of the business. These factors suggest a lack of trustworthiness.

If P took the stand the list of items (though not the statements of value) might come in as past recollection recorded.

See Pulkrabek. Inc. v. Yamaha Int'1 Co., 261 N.W.2d 657 (N.D. 1977). Compare Magnus Petroleum Co., Inc. v. Shelly Oil Co., 446 F. Supp. 874 (E.D.Wis. 1978).



Problem - Hospital Reports (490)

Answer and Analysis:

Objection overruled. The analysis requires two steps -- a problem of hearsay within a hearsay.

D is not an employee of the hospital; therefore, viewed solely under the business records exception, the report of his statements could be introduced only to show that the statements had been made, and not for the truth of the matters asserted by D. Even for this P would have to establish as a foundational matter under FRE 803(6) that it was a regular practice of the admitting hospital employee to record statements such as those made by D relating to the patient being admitted.

The second step is to recognize that D's statements are the statements of a party opponent. Therefore, the fact of D's making the statements can be proved under FRE 803(6), and the content of the statements are admissible for their truth under FRE 801(d)(2).



Problem - Computer Records (490)

The point:

Computer records are admissible under FRE 803(6) even though the printout is made specifically as a trial exhibit as long as the data compilation satisfies the foundational requirements of the rule.

Answer and Analysis:

Objection overruled. Even though the printout is made as a trial exhibit, the underlying data compilation and formula which the printout reflects was not made with an eye towards litigation. Rather, it was entered into the computer and stored there as part of the regular business of calculating the retrospective premium. Even though the printout is produced to be an exhibit for trial, the contents of the printout are based on data regularly kept for a business purpose and therefore presumably trustworthy. The fact that the printout is self-serving does not make it inadmissibile. Any business record offered by the business will be self-serving. This factor may go to the motivation of the record-maker and hence may be taken into account (1) by the court in assessing the trustworthiness of the record, and (2) by the jury in deciding what weight to give it, but it is not a per se bar.

FRE 803(6) specifically includes "data compilations in any form." The Advisory Committee's Note to FRE 803(6) states that this includes electronic data storage.

P must satisfy the following foundational requirements:

(1) The data compilation must be made "at or near the time [of the event]. "The rule is unclear whether in this case, this would cover only the input of the data as events occur, or also the creation of the printout from the stored data. The purposes of this requirement - accuracy, reliability - are served if the data is entered currently no matter when the output is obtained, so long as the data is not manipulated, selected, or edited during the printout process.

(2) The data compilation must be from information transmitted by a person with knowledge.

(3) The data compilation must be kept in the course of a regularly conducted business activity

(4) it must be the regular practice of the business to make the data compilation.

(5) The above factors must be shown by the testimony of the custodian or other qualified witness.

A direct examination to admit this evidence might go something like this:

Q. Mr. C, by whom are you employed?

A. P Co.

Q. What is your job at P Co.?

A. I am in charge of the retrospective rating division.

Q. What are your duties?

A. The retrospective rating division calculates retrospective premiums based on the loss experience for the client. The loss experience is based on claims paid and reserves made for the client's account in a particular policy year. This data is kept in the P Co. computer as it is reported by the client or our claims department. An agreed upon formula which lists the policy agreement and which is also stored in the computer is then applied to calculate the actual premiums due. I supervise this work, which is actually done by a staff of about twenty. I am also the custodian of all of these records for the P Co.

Q. How are the claims paid and reserves made entered into the computer?

A. They are entered in the regular course of business by a computer keypuncher as soon as the claim is paid by the company or the reserve is set aside. The keypuncher receives this information directly from the P Co. Claims department on a standard report form.

Q. How is the premium calculation formula entered in the computer?

A. It is entered in the regular course of business by a keypuncher directly from the policy at the beginning of the policy year.

Q. Do you recognize this document that has been marked as "P's Exhibit 1 for Identification"?

A: I do.

Q. What is it?

A. This is the printout of the claims and reserves data for the D Trucking Co. for the 1982 policy year. It also shows the premium formula and the calculations of the actual retrospective premium due based on the claims and reserve data and the premium formula.

Q. How are you able to recognize Exhibit 1 for Identification as the claims and reserve data for the D. Trucking Co.?

A. Well, I brought it with me from the files.

Q. How was this document produced?

A. Simply by asking the computer to printout the data, formula and calculations that were stored in the computer as I told you earlier.

Q. When was this printout made?

A. There should be a date in the upper right hand corner. There -- last month: October 8, 1983.

Q. When was the last data on which the printout is based entered?

A. It says February 14, 1983. It was the payment of the last outstanding claim from 1982.

Q. Were any adjustments, modifications or changes made in the data, calculations or records after February 14, 1983?

A. No.

Q. Is the data compilation stored in the computer's memory kept in the regular course of P's business?

A. Yes. This is the heart of the business. All of the data for our retro policies is stored in this way.

Q. Is this printout a regular P Co. report?

A. Yes. These reports are generated periodically to produce a hard copy, or readable, report of the premium data, calculation, and amount. mese reports are regularly sent to the client on a quarterly basis.

To the court: We offer P's Exhibit 1 into evidence.



Problem - "Giving Them the Business" (491)

Kenneth Graham created the hypothetical on which this problem is based to point out some of the subtle and not so subtle biases in the hearsay rules in favor of established interests. For example, it is likely that Viza's business records would be admitted under Rule 803(6), but not Dormer: s checking account register. Why? Aren't the underlying justifications for admitting the records the same? The only difference is that Viza is a big business and the Dormer's are individuals. Why should big business have an evidence advantage over an individual? One reason might be that businesses are likely to be more accurate and reliable in their record-keeping, but it would seem that this factor could be decided on a case-by-case basis. The hypothetical about the Donner Woven Mat Company is designed to push the issue of whether the exception arbitrarily draws a line between big and small businesses and individuals.



Supruniuk v. Petriw, 334 A.2d 857 (Me. 1975)(491)

This case poses the issue of admissibility of personal, as opposed to business, financial records. The plaintiff proffered the stub in his personal checkbook as proof that he had paid the defendant a $200 deposit on the purchase of a farm. The court rejected this proof on the ground that the circumstances of maintenance of a personal checkbook do not show the kind of regularity, objectivity and reliability of records associated with business activities. Although this case antedated the Federal Rules of Evidence, the reasoning would likely apply under FRE 803(6).



4. Public Records and Reports (494)


Problem - Police Reports (495)Answer and Analysis:

The report is inadmissible under both FRE 803(6) and 803(8). It contains hearsay within hearsay. Under, FRE 803(6), the officers report might be viewed as a regular report of the police departments, but the statement of the bystanders contained in the report are not. As the Advisory Committee's Note to FRE 803(6) states, the informant is not acting in the course of a regularly conducted activity. Unless some other exception applies to the witness's statements to the officer, such as FRE 803(1) or (2), they are inadmissible. See Johnson v. Lutz (page 495) which per the Advisory Committee's Note, is still good law under the federal rules.

The same reasoning applies under FRE 803(8). Even if the report qualifies under FRE 803(8)(B) on a matter observed persuant to duty imposed by law as to which there was a duty to report or under FRE 803(8)(C) as factual findings resulting from an investigation, the witness's statements are hearsay which have to qualify under an exception for the report to be admissible.

A caveat here is that 803(8)(C) "factual findings" must necessarily often be based on underlying hearsay, yet are admissible. The rule deals with this problem by (I) excluding such reports in criminal cases when offered against the accused, and (2) by excluding such reports when "the sources of information or other circumstances indicate lack of trustworthiness." There is a difference, however, between factual admitting findings or observations of a public agency, even when based partially on hearsay, and straight reporting of a third-party's hearsay statement. Even in a civil case, such statements should have to satisfy FRE 805 (hearsay within hearsay) before they pass FRE 803(8).

It would be course, the problem more serious if this were a criminal case. (The answer would also be clearer).

If this were a criminal case, the first question would have to be whether FRE 803(6) or 803(8) applies. This sort of question does not usually arise when hearsay is offfered under the 803 and 804 exceptions because evidence may be admitted if it meets the standards of one exception even if it fails the standards of another.

But in the criminal context, Congress amended FRE 803(8)(B) specifically to exclude from the exception for public records and reports, matters observed by police officers. If reports of police officers also fall within the exception for records of regularly conducted activities, FRE 803(6), the same restriction should apply because the same confrontation clause concerns exist no matter which exception is used. See McCormick (1978 Supp.) section 308; Advisory Committee's Notes to FRE 803(6) and (8).

This problem is a civil case, so the limitations of FRE 803(8) do not concern us. But as the Oates court points out, FRE 803(6) would have to be assessed in light of FRE 803(8) whenever the records of police officers are offered under FRE 803(6) in a criminal case.



Problem - Aircrash (497)The point:

Public records and reports must be analyzed closely to classify them into the three categories established by FRE 803(8).

Answer and Analysis:

(1) Objection overruled. The policy manual of the air traffic control tower sets forth the activities of the office. Assuming the office is a public agency -- the FAA -- the manual is admissible under FRE 803(8)(A).

(2) Objection overruled. The weather records are matters observed by the U.S. Meterological Service pursuant to duty imposed by law as to which matters there was a duty to report. (This last phrase incorporates an anti-busybody concern of the Congress.) This is not a criminal case in which the matter is observed by law enforcement personnel. Thus, the records are admissible under FRE 803(8)(B).

(3) Objection overruled, based on Beech Aircraft Corp. v. Rainey (497). The FAA's report contains both factual findings and conclusions (opinions). In a civil action, the factual findings are clearly admissible under FRE 803(3)(C) unless the sources of information or circumstances indicate lack of trustworthiness. One could argue that the opinions are inadmissible because the rule allows only "factual findings." The legislative history indicates that the House Committee intended this phrase to be strictly construed. The Senate disagreed, but the Conference Committee did not address the point. The rule as enacted includes only factual flindings, subject to specific statutory exceptions. However, in the Beech case, the Supreme Court gave a broad reading to 803(8)(C), holding that "portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with the other portions of the report."

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