United States District Court, N.D. Ohio, Western Division
G. CARR, SR. U.S. DISTRICT JUDGE
case the father of a learning-disabled daughter appeals the
decision of a State Level Review Officer (SLRO), in which the
SLRO rejected the father's challenge to his
daughter's Individual Education Plan (IEP) with the
defendant Swanton Local School District (District). The
parties have filed counter-motions for summary judgment.
turning to the merits of those motions, I need to decide the
District's motion to strike (Doc. 15), which seeks to
exclude the father's reply brief as based entirely on
inadmissible hearsay. (Doc. 14). For the reasons that follow,
I grant the motion as provided herein.
District's challenge relates to a Swanton Township police
report, which investigators prepared after receiving a report
that another disabled student had sexually assaulted the
plaintiff's daughter. The defendant claims the report is
in toto hearsay and not admissible for the truth of
the matter asserted.
was the view of the SLRO, who admitted the report at the
administrative hearing as evidence of the father's belief
- and his resulting concerns for the daughter's safety -
that the fellow student had sexually assaulted his daughter.
The SLRO did not otherwise admit the report for the truth of
anything else - including the nature, extent, and frequency
of any alleged sexual interaction or assaultive conduct by
the fellow student against the daughter.
Sixth Circuit has made explicit the parties' assumption,
implicit in their short memoranda: namely, that, unlike most
cases involving review of an administrative record, I can
entertain new evidence. See, e.g., Deal v.
Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849 (6th Cir.
turn to the question of the admissibility of the police
report in whole or part.
to be sure, to some extent hearsay. But that begs, but does
not answer, the question.
803(8) of the Federal Rules of Evidence, commonly known as
the public records exception, allows evidence of a
“record or statement of a public office if: A) it sets
out: (i) the officer's activities; (ii) a matter observed
while under a legal duty to report . . .; or (iii) . . .
factual findings from a legally authorized
offered to the jury in a civil case, police reports stand
firmly on the bedrock of Rule 803(8). E.g.,
Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.
1978) (“A police report is . . . a ‘public record
and report' within the meaning of the first part of Rule
this does not mean that whatever the officer wrote down comes
on in. As the Sixth Circuit noted in Miller v.
Field, 35 F.3d 1088, 1092 (6th Cir. 1994), statements by
victims and others who said something to the officer are
“hearsay within hearsay, ” and should not go
before a jury.
that doesn't shut the door totally tight: if the
second-tier hearsay is itself the subject of an exception, it
gets on through. Which enables the fellow student's
statements about what he did and when and where he did it to
come in as admissions against his penal interest under
Fed.R.Evid. 804(3)(b). See, e.g., Tolbert v.
United States, 112 Fed. App'x 440, 444 (6th Cir.
2004) (finding that “[j]uvenile's statement was
against penal interest” because it “exposed
herself to the possibility of criminal prosecution in . . .
juvenile court system”).
crack in the door remains: namely, statements attributed to
school staff that the sexual incidents could not have
happened in the classrooms. Though neither party spotted this
issue, I elaborate so as to move the case along a sensible
could have argued that those statements are admissible under
Rule 801(d)(2)(C) of the Federal Rules of Evidence “as
made by a person whom the party authorized to make a
statement on the ...