United States District Court, D. Colorado
ORDER ON DEFENDANT'S MOTIONS IN LIMINE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion in Limine [filed
April 14, 2017; ECF No. 34]. Defendant's motion asks
the Court to admit the written statements of an eyewitness to
the ski accident underlying this case. Def.'s Mot. 2. For
the following reasons, the Court denies Defendant's
after the ski collision giving rise to this lawsuit, Angel
Pacheco-the then-boyfriend of Plaintiffs' niece, Julia
Bryan-made a statement to ski patrol describing the incident.
Def.'s Mot. 3, ECF No. 34. Because Mr. Pacheco spoke very
little English, he relayed his observation to Ms. Bryan in a
mixture of Spanish and broken English. Decl. of Julia Bryan
¶¶ 7-8, ECF No. 40-1. Ms. Bryan then transcribed
the information on a witness statement form. Id. at
parties agree that the witness statement form contains
hearsay within hearsay. Def.'s Mot. 5; Pls.' Resp. 3,
ECF No. 40. However, Defendant asserts the form is admissible
under the present sense impression and business record
exceptions. Def.'s Mot. 5-8. Plaintiffs do not contest
that a witness' statements to ski patrol directly
following a collision would generally fall under these
exceptions. Pls.' Resp. 4 (“Plaintiffs do not
dispute that the other handwritten statements contained
within the Ski Patrol Report, all of which were written by
the declarants themselves, fall within the business records
exception.”). Instead, Plaintiffs claim the exceptions
do not apply to Mr. Pacheco's statements, because the
language barrier between Ms. Bryan and Mr. Pacheco renders
the statements untrustworthy. Id. The Court holds
that the witness statement form containing Mr. Pacheco's
observations is inadmissible hearsay. The form contains
multiple levels of hearsay, not all of which satisfy an
exception to the hearsay rule.
Defendant's contention that the business record exception
applies, Federal Rule of Evidence 803(6) renders admissible
records of regularly conducted activities if:
(A) the record was made at or near the time by-or from
information transmitted by-someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation,
or calling, whether or not for profit;
(C) making the record was a regular practice of that
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of information
or the method or circumstances of preparation indicate a lack
essential component of the business records exception is that
each actor in the chain of information is under a business
duty or compulsion to provide accurate information.”
United States v. McIntyre, 997 F.2d 687,
699 (10th Cir. 1993); United States v. Snyder, 787
F.2d 1429, 1434 (10th Cir. 1986) (“The reason
underlying the business records exception fails, however,
‘if any of the participants is outside the pattern of
regularity of activity.'” (quoting J. Weinstein
& M. Berger, Weinstein's Evidence, at 803-186
(1985))). Therefore, the general rule is that “[a]ny
information provided by . . . an outsider to the business
preparing the record must itself fall within a hearsay
exception to be admissible.” United States v.
Gwathney, 465 F.3d 1133, 1141 (10th Cir. 2006). An
exception to this rule exists when “the business entity
has adequate verification or other assurance of accuracy of
the information provided by the outside person.”
McIntyre, 997 F.2d. at 700. The Tenth Circuit has
provided two ways to satisfy this exception: “(1) proof
that the business has a policy of verifying patrons'
identities by examining their credit cards, driver's
licenses, or other forms of identification; or (2) proof that
the business possesses ‘a sufficient self-interest in
the accuracy of the record' to justify an inference of
trustworthiness.'” United States v.
Cestnik, 36 F.3d 904, 908 (10th Cir. 1994) (quoting
McIntyre, 997 F.2d at 700).
present case, Mr. Pacheco and Ms. Bryan both participated in
making the record. Mr. Pacheco relayed his observations to
Ms. Bryan, who wrote them on the witness statement form.
Because Mr. Pacheco and Ms. Bryan are both “outsider[s]
to the business preparing the record, ” their
statements must satisfy a separate hearsay exception or
adequate guarantees of trustworthiness must exist.
Gwathney, 465 F.3d at 1141. Even assuming, as
Defendant contends, that Mr. Pacheco's statement falls
under the present sense impression exception, Ms. Bryan's
transcription of those observations does not satisfy an
independent exception. She did not perceive the events Mr.
Pacheco described, so as to satisfy the present sense
impression exception, and no other exception applies.
Furthermore, ski patrol does not have a sufficient
self-interest in the accuracy of the record to justify an
inference of trustworthiness. Although ski patrol would
certainly prefer that witnesses tell the truth, it is not
subject to any penalties should the statements be incorrect.
Moreover, Defendant does not assert that ski patrol takes any
actions to ensure the accuracy of the statements.
ski patrol had a self-interest in the veracity of its witness
statement forms, Mr. Pacheco's form is not sufficiently
trustworthy to satisfy Rule 803(6). See United States v.
Huddy, 62 F. App'x 903, 905 (10th Cir. 2003)
(“To be admissible, business records must be
trustworthy.”). In United States v. Hernandez,
the Tenth Circuit discussed whether records compiled by more
than one person were sufficiently trustworthy to be
admissible. 333 F.3d 1168, 1179 (10th Cir. 2003). The
court held that such records are admissible when “each
participant in the chain testifies at trial as to the
accuracy of his or her piece of the chain.”
Id. Applying this rule, the court admitted the
records, because the first individual “testified that
she accurately read [the information] to [the second
individual], and [the second individual] testified that she
accurately recorded it.” Id. Here, Ms. Bryan
stated in her declaration that her written statement may not
be “an accurate depiction of what Mr. Pacheco intended
to convey.” Decl. of Julia Bryan ¶ 11. Therefore,
the preparation of the witness statement lacks sufficient
indicia of reliability to be admissible under Rule 803(6).
the Court holds that Mr. Pacheco's witness statement to
ski patrol is inadmissible hearsay. The statement constitutes
hearsay within hearsay, and Ms. Bryan's transcription of
Mr. Pacheco's observations does not satisfy any exception
to the hearsay rule. Furthermore, even if ski patrol had a
self-interest in the accuracy of Ms. Bryan's statement,
the preparation of the witness form would not be sufficiently
trustworthy to ...