Initially admitted only factual findings.
Later reversed and admitted certain conclusions and opinions.
Court Reversed, Admitted, and Barred
The court admitted most of the report's "opinions,"
Paragraph 5: The impossibility
of determining exactly what happened
Paragraph 7: Which opined about
failure to maintain proper interval as "[t]he
most probable cause of the
The remainder of paragraph 5, "nothing but a possible scenario,"
Paragraph 6: In which investigator Morgan refused to rule out
rollback, was deleted as
Second Document also at Issue (Rainey's Rollback Report)
Based on Rainey's own investigation.
He was a Navy flight instructor
the letter took issue with some of the JAG Report's findings and
outlined Rainey's theory that "[t]he most probable primary cause
factor of this aircraft mishap is a
loss of useful power (or
rollback) caused by some form of pneumatic sensing/fuel flow
malfunction, probably in the fuel control unit.
Two Week Trial - JAG report should have been excluded
Jury returned verdict for the petitioners.
Agreed with Raineys argument
Rule 803(8)(C) excepts investigatory report from the hearsay
rule, did not encompass evaluative conclusions or opinions.
Conclusion in the JAG report should have been excluded.
Court of Appeals
Controversy over what public records and report are not
excluded by 803(8)(C)
Smith v. Ithaca (Narrow Reading)
Held that the term "factual findings" did not encompass
"opinions" or "conclusions."
Held that "factual findings admissible under Rule 803(8)(C) may
be those which are made by the preparer of the report from
disputed evidence . . . ."
- factually based conclusions or opinions NOT EXCLUDED (Broader)
We agree and hold that factually based conclusions or opinions
are not on that account excluded from the scope of Rule
Proponents of the narrow view
Have relied heavily on a perceived dichotomy between "fact" and
"opinion" in arguing for the limited scope of the phrase
Records of regularly conducted activity, which expressly refers
to "opinions" and "diagnoses."
"Factual findings," the court opined, must be something other
Does not Agree (no
distinction between "fact" and "opinion" Rule 803(8)(C))
First, It is not apparent that the term "factual findings"
should be read to mean simply "facts" (as opposed to "opinions"
common definition of "finding of fact" is, for example, "[a]
conclusion by way of reasonable inference from the evidence
To say the least, the language of the Rule does not compel us to
reject the interpretation that "factual findings" includes
conclusions or opinions that flow from a factual investigation.
Second, we note that, contrary to what is often assumed, the
language of the Rule does not state that "factual findings" are
admissible, but that "reports . . . setting forth . . . factual
findings" (emphasis added) are admissible.
On this reading, the language of the Rule does not create a
distinction between "fact" and "opinion" contained in such
Court Legislative History
No mention of any dichotomy between statement of fact and
opinions or conclusions.
Whether evaluative reports should be admissible.
Various federal statutes made certain kinds of evaluative
All of the examples were reports that stated conclusions.
Referred to reports setting forth factual findings, where is
call evaluative reports.
Advisory Committee Four Factor Nonexclusive list
the timeliness of the investigation;
the investigator's skill or experience;
whether a hearing was held; and
possible bias when reports are prepared with a view to possible
As long as the conclusion is based on a factual investigation
and satisfies the Rule's trustworthiness requirement, it should
be admissible along with other portions of the report.
As the trial judge in this action determined that certain of the
JAG Report's conclusions were trustworthy, he rightly allowed
them to be admitted into evidence.
We therefore reverse the judgment of the Court of Appeals in
respect of the Rule 803(8)(C) issue