Monday, July 12, 2010

Report In FBI File Not Admissible Without FBI Authentication

In Arce v. The Wackenhut Corporation (3D08-3029), the Third District affirmed a trial court's decision relating to the admissibility of the dispositive piece of evidence.  The court stated:
The issue on this appeal is whether a concededly authentic document, purporting to be a transcription by an unidentified employee of the Federal Bureau of Investigation (FBI), of a summary dictated by an unidentified representative of the FBI, of an interview conducted either by that individual or another, is admissible in evidence under the public records exception to the hearsay rule codified in section 90.803(8) of the Florida Statutes (2008). In the balance lies the validity of an adverse summary final judgment suffered by Appellant, the plaintiff in a defamation action filed by him against his former employer, the Wackenhut Corporation, for allegedly falsely maligning him to his prospective employer, the FBI. The trial court held this dispositive piece of evidence was inadmissible. We affirm the decision of the trial court.
The transcription on which Arce relies to create an issue of fact is, in fact, an inadmissible hearsay statement unless an exception applies....The only exception argued by Arce is the public records exception codified in section 90.803(8)...“Under this provision, two types of public records and reports are admissible into evidence: (1) records setting forth ‘the activities of the office or agency’; and (2) records of a public office or agency which set forth ‘matters observed pursuant to a duty imposed by law as to which matters there was a duty to report.’”....“In adopting this exception,” our High Court has explained, “Florida specifically excluded a third type of record that is admissible under the corresponding federal rule: that is, ‘a record setting forth factual findings resulting from an investigation made pursuant to an authority granted by law.’”
Arce argues, in the alternative, that summary judgment was entered prematurely because he was not given sufficient time to obtain a certificate of authenticity for the disputed document pursuant to section 90.902 of the Florida Evidence Code....Arce again errs, first by making the common legal error of conflating authenticity of a document with admissibility, see Ehrhardt, at § 902.1 (“Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable.”), and second, in his belief that by the FBI inserting some requisite words, the document will become admissible under the public records exception to the hearsay rule.
Notably, the Court ended the majority opinion by stating:
We express some degree of sympathy for Arce. He might have been legally maligned by his former employer to the FBI. That also might have been the reason his conditional offer of employment was withdrawn. The FBI says it receives so many requests for information each year that it cannot be bothered to produce a witness at some convenient time to either assist one of the citizens it serves, or dispel his belief concerning why he did not get the job. Absent a witness, Arce’s case is lost. As an agent of the sovereign, the FBI has every right to behave in such a way as to deliver this result. However, it strikes us that this action is uncharacteristic of the “Government of the People, by the People and For the People,” famously envisioned by Abraham Lincoln in his Gettysburg address over 140 years ago.
(emphasis added).  Judge Cortinas wrote a ten page dissent that began "Tony Arce never had a chance. Not versus The Wackenhut Corporation. Not against the Federal Bureau of Investigation. Not even in court."  The dissent later stated "Following the exclusion of the evidence that essentially formed the basis for Arce’s allegations, the trial court entered summary judgment. The railroading of Tony Arce’s case was now complete."


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