Ninth Circuit Rejects Hearsay and Confrontation Clause Challenges to Admissibility of Document Authored by Deceased Police Officer

In United States v. Fryberg, No. 16-30013 (9th Cir. Apr. 21, 2017), the Ninth Circuit analyzed whether a return of service of a domestic violence protection order was properly admitted into evidence. Raymond Lee Fryberg, Jr. was convicted of possession of a firearm by a prohibited person. An element of the crime for which Mr. Fryberg was convicted is that he was subject to a domestic violence protection order that was issued after a hearing for which he “received actual notice” and “had an opportunity to participate.” 18 U.S.C. § 922(g)(8). The government argued that, years before Mr. Fryberg’s conviction, a police officer served him with notice of a hearing that led to a domestic violence protective order because Mr. Fryberg failed to attend the hearing. As proof, the government admitted a copy of the return of service the now-deceased police officer prepared. Mr. Fryberg tried to exclude the return of service by claiming that it was inadmissible hearsay, and that it violated his rights under the Confrontation Clause of the Sixth Amendment.

On appeal, the court concluded the return of service was admissible under the public records exception to the hearsay rule, and that there was no Confrontation Clause violation. Speaking to the public records exception, the court noted the return of service seemingly violated the rule’s law-enforcement exclusion. This exclusion states that a hearsay statement is not admissible under the public records exception “in a criminal case” if it sets out “a matter observed by law-enforcement personnel.” Fed. R. Evid. 803(8). The court, however, looked to the exclusion’s common law origins to determine the return of service did not implicate the exclusion. Because the return of service was a record of a routine, nonadversarial matter made in a nonadversarial setting that reflected ministerial and objective observations of law enforcement, it could be admitted as a public record.

This characterization of the return of service as a neutral document also led the court to conclude that its admission did not violate the Confrontation Clause. Because the police officer was deceased at the time of trial, and Mr. Fryberg had no prior opportunity to cross-examine him, the admission of his hearsay statements against Mr. Fryberg would violate the Confrontation Clause if the statements were testimonial. The court determined the return of service was not testimonial because the “primary purpose” of the record was not for use as evidence in a future criminal trial, but rather to inform a court that Mr. Fryberg had been served with the domestic violence protection order.