March 28, 2011 § Leave a comment

Suppose in an equitable distribution case that you have to prove the balance in a PERS account and its balance on a past date?  Or in a contempt case that you have to prove it was a hail storm that did the damage on May 15, 2008?  Or in a modification of child support case that the consumer price index has increased by x percent since 2006?

And suppose that in each of the scenarios above counsel opposite will not stipulate to the facts or allow you any easy way to go about proving what you need to prove?

Do you have to subpoena a witness from PERS to bring the records and do calculations in person?  Do you have to subpoena a meteorologist to testify as an expert?  Are you required to enlist a respected economist to testify about the CPI?

There’s an easier, more efficient way that opens up endless, inexpensive opportunities to prove even the most esoteric matters.

It’s MRE 803(8), which states that, even if the declarant is available to testify, the following are not excluded by the hearsay rule:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duties imposed by law as to which matters there was a duty to report …

There’s more to the rule involving reports such as police reports and investigative reports, but that’s a subject for another post.

To utilize that part of Rule 803(8) stated above, all you have to do is produce a certified copy of a record or report of a public agency that sets forth either activities of the agency or matters observed pursuant to a duty imposed on the agency by law.

To prove the balance in the PERS account and its balance on a past date, get a certified copy of a report from PERS itself showing that information.

The hail storm on May 15, 2008, can be proven through a certified report from the National Weather Service.

The U.S. Department of Commerce can give you a certified copy of a report showing the CPI information you need.

MRE 902(1) and (2) say that those documents are self-authenticating.

The late Lawrence Rabb, who was a respected lawyer in Meridian, often astonished me with the proof he was able to marshal using certified reports he obtained from state and federal agencies.  Many times he was able to prove critical elements of a case with a simple, self-authenticating document.  With a little imagination, I am sure that you can come up with dozens of ways you can put Rules 803(3) and 901(1) and (2) to use for you.

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