Public Record Hearsay - A Dramatic Expansion?

by Charles Buchanan¹ and Andrew Buchanan²

I. Introduction

Understanding the public record exception to hearsay in Missouri involves navigating a maze of statutory exceptions and piecing together confusing common law. Although most of Missouri's statutory hearsay exceptions create very narrow categories of admissible hearsay, the Supreme Court of Missouri's interpretation of § 490.220, RSMo, in Rodriguez v. Suzuki Motor Corp.,³ creates a more expansive exception.⁴

Section 490.220 provides that:

[a]ll records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

The majority in Rodriguez held that documents meeting the foundational requirements of § 490.220 are admissible in their entirety. ⁵ The Court implied that documents admissible under § 490.220 are not subject to exclusion on any grounds short of possible relevance. ⁶

Judge Ronnie White submitted a vigorous dissent in Rodriguez. He argues that § 490.220 provides only for authentication of foreign documents. Although the legislative history appears to support the dissent, the historical application of the statute appears to support the majority. Regardless of the proper interpretation of the statute, as the dissent notes, Missouri now has the broadest public record exception in the country.

This article discusses the Rodriguez opinion and the ramifications of the hearsay exception it creates. Specifically discussed are the exception's significant departure from common law principles, the preferential treatment it provides to foreign public records, and its deviation from the public record exceptions set forth in the Federal Rules of Evidence and other jurisdictions.

II. The Rodriguez Case

In Rodriguez v. Suzuki Motor Corp.,⁷ the plaintiff, Rodriguez, was severely injured when the Suzuki Samurai in which she was a passenger rolled over. Rodriguez claimed the roll-over was the result of a design defect.⁸ There were two trials in this case. Judgment in the first trial was reversed for failure to admit certain evidence.⁹ At the second trial, Rodriguez relied on a 1988 Consumers Union report and the testimony of two experts to prove the Samurai was unreasonably dangerous.¹⁰ In response to Rodriguez's evidence, Suzuki produced its own expert, who disputed Rodriguez's experts' opinions as well as the methods used to reach the opinions.¹¹ Suzuki also sought to introduce reports published in 1988, 1996 and 1997 by the National Highway Transportation Safety Administration (NHTSA) and a 1988 report from the Great Britain Department of Transportation (GBDOT).¹² All of the reports questioned the validity of the roll-over testing methodology employed by Rodriguez's experts and the Consumers Union report.¹³ All of the reports, except the 1997 NHTSA report, specifically addressed the Samurai's roll-over propensity and found that it was well within the acceptable range of performance.¹⁴ The trial court considered admission of the NHTSA and GBDOT reports under the common law public record exception, but the reports were disallowed because they included opinions and conclusions.¹⁵ A jury verdict was entered for Rodriguez in the amount of $25 million for compensatory damages and $11.9 million for punitive damages.¹⁶ On motion for remittitur, the trial court reduced the award of compensatory damages to $20 million.¹⁷

On appeal to the Supreme Court of Missouri, Suzuki argued that excluding the NHTSA and GBDOT reports was reversible error.¹⁸ Rodriguez relied on the Missouri common law and argued that the records were hearsay and inadmissible under the public record exception because they contained opinions and conclusions.¹⁹ Suzuki relied on § 490.220, claiming the language "shall be evidence" makes all records that meet the statutory foundational requirements immune from hearsay objections.²⁰ In a 6-1 decision,²¹ the court agreed, stating:

Although there appears to be no case addressing the precise question here presented – whether the statutory exception encompasses opinions and conclusions contained within the records – the statute is unqualified and open-ended. Once the statutory foundational requirements are met, and plaintiff makes no contention that they were not met in this case, then the reports are admissible in their entirety.²²

Addressing Rodriguez's objection to the admission of such hearsay, the court further implied that records admissible under § 490.220 are not subject to exclusion when it stated "this Court has no choice in the matter because, as stated, admission of the reports is required by statute."²³ Thus, the majority looked only to the plain meaning of the statute. Finding the plain meaning clear and unambiguous, the Court held that the records must come in without the application of common law principles.

III. The Plain Language of § 490.220

Section 490.220 states that records meeting the foundational requirements "shall be evidence." The term "evidence," as used in § 490.220, is ambiguous. It has been defined as "[t]hat which tends to produce conviction in the mind as to existence of a fact."²⁴ This definition says nothing about admissibility, and it implies that something that is evidence may still be found inadmissible through the application of evidentiary rules. The term "evidence" has also been defined as "[a]ny species of proof, or probative matter legally presented at the trial...for the purpose of inducing belief. . . . "²⁵ This definition implies that something does not become evidence until it is admissible. This distinction was not discussed in Rodriquez, nor has it been discussed in the application of any of the statutes discussed in footnote four. While either definition of evidence is reasonable, the ambiguity in the term certainly gave the majority in Rodriguez ample opportunity to look past the plain language and into the statute's legislative history.

IV. The Legislative History of § 490.220

The legislative history of § 490.220 appears to support the dissent's contention that the statute was passed only to provide a means of authenticating foreign public records. Section 490.220 dates back to 1855, when it was enacted as R.S. 1855, Chapter 62 § 42. The current § 490.220 follows the 1855 statute verbatim.²⁶ Judge White's dissent in Rodriguez argued that R.S. 1855, § 42 was passed to implement the act of March 27, 1804 ("Federal Act").²⁷ The Federal Act provided for authentication of public records of sister states. The purpose of the act was to carry into effect Article IV, Section 1 of the United States Constitution, the full faith and credit clause.

In 1836, after the passage of the Federal Act, but before the passage of R.S. 1855, § 42, the Supreme Court of Missouri, in Paca v. Dutton,²⁸ refused to accept a Maryland record establishing the emancipation of a slave because the clerk of the court failed to properly certify the presiding judge, as required by the Federal Act. Thereafter, the Missouri legislature passed R.S. 1855, § 42. R.S. This statute instructed the reader to "compare" it to the Federal Act and referred the reader to Paca. The dissent in Rodriguez argued that R.S. 1855, § 42's reference to the Federal Act plus the reference to Paca indicates that R.S. 1855, § 42 was intended only to preempt the Federal Act by providing a less stringent means of authenticating foreign records.²⁹ Although this argument is convincing, it is unclear whether Missouri courts applied the statute in this manner.

V. Judicial Application of § 490.220 and Its Predecessors

The dissent in Rodriguez cites three early cases to illustrate that the predecessors of § 490.220 were applied only as authentication statutes.³⁰ It is unclear whether these early courts were applying the statute only as a means of authentication because they regarded it as such, or because the attorneys in those cases presented the issue to the court as only one of authentication.

Regardless of how these early courts were applying the predecessors to § 490.220, as time passed courts began to clearly speak of § 490.220 as a means of overcoming hearsay objections. In United States v. Estate of Weidemann,³¹ the court admitted tax returns under seal of the United States government, stating that "[o]bjections on the ground of lack of foundation and hearsay are not applicable to records admitted under this section."³²

If the original enactment of § 490.220 was intended only to provide for authentication of foreign documents, it has not been consistently applied. While Rodriguez is not the first court to speak of § 490.220 as a hearsay exception, the language of the holding appears to create a much broader exception than had previously been announced. Namely, by stating that when a party submitting evidence meets the foundational requirements of § 490.220 the court has no choice but to admit the evidence, it appears the Supreme Court of Missouri has opened the door to a wide range of evidence not previously admissible under the common law. The ramifications of such a rule are discussed below.

VI. Ramifications of the Rodriguez Holding

There are several ramifications of the interpretation given to § 490.220. First, if read literally, it amounts to a significant departure from common law evidentiary rules. Specifically, the interpretation appears to take away all discretion to exclude unreliable hearsay, including untrustworthy opinion testimony, untested expert testimony and hearsay within hearsay, as well as unfairly prejudicial hearsay. Second, it provides for preferential treatment of foreign records over records under the seal of the State of Missouri. Third, it creates a hearsay exception much broader than that of the Federal Rules of Evidence and other jurisdictions.

The Rodriguez opinion is only two years old. There have been no cases applying its reading of § 490.220. As cases apply the statute as read in Rodriguez, the above concerns will come to light.

A. Records Containing Opinions and Conclusions

The Missouri common law public record exception states that "[a] record or document kept or prepared by a person whose public duty it is to record truly the facts stated therein is, when relevant, admissible as prima facie evidence of such facts. . . ."³³

The common law public record exception in Missouri generally has not provided for the admissibility of records containing opinions and conclusions. Several Missouri cases have excluded records because they contained opinions and conclusions, rather than a recitation of facts from the first hand knowledge of a public official.³⁴ Thus, allowing hearsay containing opinions and conclusions to flow through § 490.220 amounts to a significant departure from the common law public records exception. ³⁵

The majority of the Supreme Court of Missouri in Rodriguez v. Suzuki Motor Corp.,³⁶ however, suggested that whether Missouri common law allows for the admission of public records containing opinions and conclusion is unresolved. The majority in Rodriguez questioned the statement of Missouri common law in Kansas City Stock Yards v. Reich & Sons, Inc., which was relied on by Rodriquez.³⁷ Kansas City Stock Yards³⁸ recites the Missouri common law that "[i]n so far as documents set forth the mere opinions or conclusions of public officials they are inadmissible as official records or documents." This recitation was cited to 32 C.J.S. Evidence, § 637.³⁹ The majority in Rodriguez pointed out that the above passage omitted the next line of Corpus Juris Secundum which states "at least where the official would not be competent to testify as to such opinion or conclusion, or where the opinion or conclusion is of doubtful reliability in the absence of the right of cross-examination. . . ."⁴⁰ The majority hinted, but declined to decide, that the recitation in Kansas City Stock Yards was too narrow a reading of the Missouri common law and that opinions and conclusions may be admissible under certain circumstances.⁴¹

Even if Missouri common law does allow the admission of opinions and conclusions in public records, the interpretation given to § 490.220 marks a dramatic departure from the common law. As noted in the above quoted passage from C.J.S., the records are still subject to exclusion on the grounds that they are untrustworthy. Therefore, a powerful weapon given to trial judges to prevent untrustworthy evidence from coming into evidence has been taken away when hearsay is admitted under § 490.220.⁴²

B. Expert Testimony

In order to gain admission of expert testimony, the proponent must establish that the expert is qualified as such⁴³ and that the opinion he or she is presenting, if it is scientific in nature, satisfies the Frye standard.⁴⁴ The broad reading of § 490.220 would seem to immunize expert opinions in hearsay form from exclusion for failure to qualify the declarant as an expert and failure to pass the scrutiny of the Frye standard. The Federal Rules of Evidence deal with the problem by giving the trial judge discretion to exclude evidence deemed to be unreliable.⁴⁵ As discussed, however, § 490.220 does not appear to provide for discretionary exclusion.

Such a broad reading of § 490.220 also creates an unexplainable inconsistency. An expert's opinion could be inadmissible if the expert is testifying in person because of an inability to qualify the expert or satisfy the Frye standard, but admissible under § 490.220 if the testimony is in hearsay form.

C. Hearsay Within Hearsay

Under the common law, hearsay within hearsay is admissible only where both of the statements fall within a hearsay exception.⁴⁶ In Rodriguez, the majority's statement that "[o]nce the statutory foundation requirements are met . . . then the reports are admissible in their entirety" seems to dispense with the above common-law requirement.⁴⁷ If § 490.220 is applied in this manner, there is an abundance of evidence from federal documents that would be admissible. Congress is potentially a powerful source for such evidence because of its frequent fact-finding, which is often based on hearsay evidence. Congressional sources include the Congressional Record, which is the official record of the proceedings and debates of the United States Congress; the Congressional Reports Database, which contains House, Senate and Executive reports; and the Congressional Hearings Database, which contains selected House and Senate hearings. These records are required by the law to be made and kept.⁴⁸ Therefore, under the broad language of Rodriguez, hearsay within hearsay contained in such records appears to be admissible under § 490.220.

D. Unfairly Prejudicial Evidence

Whether § 490.220 overcomes unfair prejudice objections may depend on the meaning of "relevancy." The Supreme Court of Missouri in Hadlock v. Director of Revenue⁴⁹ stated: "With the possible exception of relevancy, a statute may eliminate one or more of these obstacles" to admission of evidence, "including relevancy, authentication, the best evidence rule, and hearsay." Therefore, § 490.220 may not immunize hearsay from relevancy objections. The meaning of "relevancy" is somewhat ambiguous. To be logically "relevant," evidence must only tend to make the existence of any material fact more or less probable than it would be without the evidence.⁵⁰ This is a very low standard and would not exclude evidence because it is unfairly prejudicial. Determining "[l]egal relevance involves a process through which the probative value of the evidence . . . is weighed against the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence."⁵¹ Therefore, whether § 490.220 immunizes hearsay from objections on the grounds of unfair prejudice may depend on whether the court limits legislative ability to provide for admission of evidence at logical or legal relevancy.⁵²

E. Preferential Treatment of Foreign Documents

Given the Rodriguez Court's interpretation of § 490.220, all hearsay contained in public records kept under the seal of the federal government or a sister state, and properly attested, is admissible to prove the truth of the matter asserted. Missouri has no broad statutory hearsay exception for its own public records. To gain admission, Missouri records must fit into narrow statutory exceptions⁵³ or meet the requirements of the common law exception.

Several cases illustrate situations in which a Missouri public record did not fit into a statutory hearsay exception and were found inadmissible under the common law exception because they contained opinions and conclusions.⁵⁴ If these records were the public records of the federal government or a sister state, they would fall under § 490.220 and would be admissible. The sole factor making them inadmissible is that they were made under the authority of the State of Missouri rather than another jurisdiction. It is hard to imagine a possible rationale for providing public records from another jurisdiction greater deference in the courts of Missouri than Missouri's own public records.

It would seem that this dichotomy should be short-lived and that Missouri public records should enjoy at least as much acceptance as records of sister states. Whether the inequity will be remedied by narrowing the broad application of § 490.220 or by expanding the admissibility of Missouri public records remains to be seen.

F. Comparison to the Federal Rules of Evidence and Other Jurisdictions

The majority in Rodriguez implied that its interpretation of § 490.220 created a rule similar to Federal Rule of Evidence 803(8) and the rules of other jurisdictions.⁵⁵ A closer look reveals that the dissent's statement that the majority had created the most liberal public records exception in the country is correct.⁵⁶

Federal Rule of Evidence 803(8) (emphasis added) states that the following are not excluded as hearsay: "Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness." A split in the circuits quickly arose as to whether the term "factual findings" in 803(C) encompassed opinions and conclusions.⁵⁷ The United States Supreme Court addressed the issue in Beech Aircraft Corp. v. Rainey,⁵⁸ finding that "factual findings" did encompass opinions and conclusions. The Court noted that Rule 803(8)(C) marked a shift in the focus of the public record exception. No longer would federal courts rely on an arbitrary fact – opinion dichotomy; rather, federal courts would rely on the trustworthy requirement of Rule 803(8)(C) to prevent unreliable evidence from getting to the jury. The Court said about the trustworthy requirement:

This trustworthiness inquiry – and not an arbitrary distinction between "fact" and "opinion" – was the Committee's primary safeguard against the admission of unreliable evidence, and it is important to note that it applies to all elements of the report. Thus, a trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof—whether narrow "factual" statements or broader "conclusions"—that she determines to be untrustworthy. Moreover, safeguards built into other portions of the Federal Rules, such as those dealing with relevance and prejudice, provide the court with additional means of scrutinizing and, where appropriate, excluding evaluative reports or portions of them.⁵⁹

This makes it clear that the reason the United States Supreme Court was willing to read FRE 803(8) as allowing opinions and conclusions was that other protections against untrustworthy and unfairly prejudicial hearsay exist. The Rodriguez majority's reading of § 490.220, which does not provide for discretionary exclusion, seems inconsistent with the interpretations of Rule 803 by the United States Supreme Court.

The reading given to § 490.220 also creates a much broader public record exception than that of other jurisdictions. Most states have public records exceptions substantially similar to Federal Rule of Evidence 803(8).⁶⁰ Further, most provide, on their face, for discretionary exclusion.⁶¹ In short, the Rodriguez dissent's statement that Missouri now has the broadest public record exception in the country appears to be accurate.

Public records that have been excluded by other courts, but likely would be admitted under § 490.220, include: records including and relying on hearsay within hearsay;⁶² records including uncorroborated statements and unauthenticated documents;⁶³ records including conclusions reached without factual basis;⁶⁴ and records including opinions of an inexperienced investigator.⁶⁵

VII. Conclusion

Even though the Rodriguez opinion is now more than two years old, the apparent expansion of the admissibility of public records has had little impact on appellate cases. In fact, there is no Missouri appellate case citing the Rodriguez case on this issue. It is unclear what impact the Rodriguez opinion will have in the long term. The broad hearsay exception created by the Rodriguez opinion, if applied literally, may create concerns and inconsistencies that must be dealt with by the legislature or the courts.

Endnotes

¹ Charles Buchanan is a partner with the law firm of Buchanan & Williams in Joplin. Mr. Buchanan is a graduate of the University of Missouri-Columbia Law School.

² Andrew Buchanan is a third-year student at St. Louis University Law School. Special thanks to John C. O'Brien, professor of law at St. Louis University, for his input in the writing of this article.

³ 996 S.W.2d 47, 54 (Mo. banc 1999).

⁴ Other sections of the Missouri Revised Statutes 2002 used to admit public records include: § 302.312 ("Copies . . . of the department of revenue or the bureau of vital records . . . shall be admissible as evidence"); § 303.310 ("A copy of the [motor vehicle accident] report [required by section 303.040] . . . shall be received . . . as evidence of the contents of the original report."); § 445.040.2 ("Copies of the record of plats . . . shall be evidence . . ."); § 490.180 ("Copies of all papers . . . in the office of the secretary of state, state treasurer, state auditor and register of lands…shall be evidence . . ."). For a comprehensive list of such statutes see 22A Mo. Practice § 803(8).1, n.4 (2000). Not all of these sections are hearsay exceptions. For example, sections that include limiting language, such as "with like effect as the original," are not hearsay exceptions. See Hadlock v. Director of Revenue, 860 S.W.2d 335 (Mo. banc 1993).

⁵ The foundational requirements are attestation by (1) the keeper of the record and (2) the seal of the keeper's office, if there is such a seal. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 54 (Mo. banc 1999).

⁶ Constitutional limitations on the admission of hearsay against criminal defendants will limit the admission of hearsay under § 490.220 in the criminal context. See White v. Illinois, 502 U.S. 346 (1992); Edward J. Imwinkelried, The Constitutionalization of Hearsay: The Extent to Which the Fifth and Sixth Amendments Permit or Require the Liberalization of the Hearsay Rules, 76 Minn. L. Rev. 521 (1992).

⁷ 996 S.W.2d 47, 54 (Mo. banc 1999).

⁸ Id.

⁹ Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996).

¹⁰ Rodriguez, 996 S.W.2d at 54.

¹¹ Id.

¹² Id.

¹³ Id.

¹⁴ Id.

¹⁵ Id.at 55.

¹⁶ Id. at 54.

¹⁷ Id.

¹⁸ Id. at 55.

¹⁹ Id.

²⁰ Id. at 56.

²¹ Judge Limbaugh wrote the majority opinion which Judges Benton, C.J., Price, Covington, Holstein, JJ., and Crow, Special Judge, concurred. Judge White dissented and Judge Wolff did not participate.

²² Id.

²³ Id. at 57.

²⁴ Blacks Law Dictionary, 498 (5th ed.1979).

²⁵ Id.

²⁶ Prior versions of § 490.220, RSMo 2000, are found in R.S.1929, § 1661; R.S.1919, § 5348; R.S.1909, § 6293, R.S.1899, § 3098; R.S.1889, § 4844; and R.S.1855 p. 730, § 42. These prior statutes are identical to § 490.220.

²⁷ The statute is now enacted as 28 U.S.C. § 1739 (1948).sd

²⁸ 4 Mo. Reports 371 (Mo. 1836),

²⁹ Rodriguez, 996 S.W.2d at 70.

³⁰ Howell, Jewett & Co. v. Caryl & Co.,50 Mo. App. Reports 440 (Mo. App. W.D. 1892); Florscheim & Co. v. Fry, 84 S.W. 1023, 1023-24 (Mo. App. E.D. 1905); State v. Hendrix, 56 S.W.2d 76, 79 (Mo. 1932).

³¹ 708 S.W.2d 735, 737 (Mo. App. E.D. 1986).

³² Further evidence of § 490.220's use as a hearsay exception is found in Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. 1993). In Hadlock, the Supreme Court of Missouri interpreted § 302.312.1, RSMo, which states, "[c]opies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health . . . shall be admissible as evidence. . . ." The Court stated that the language "shall be admissible" is similar to § 490.220 that makes evidence admissible subject only to its relevancy.

³³ Wheeler v. Fidelity & Casualty Co. of New York, 251 S.W. 924, 931 (Mo. 1923); citing 22 C.J. 801 (emphasis added).

³⁴ See State v. Thompson, 64 S.W.2d 277, 285 (Mo. banc 1933) (finding letter from bank examiner "full of admonitions and expressions of opinion" and therefore not admissible); Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692, 700 (Mo. 1952) (statement in a fire department report regarding cause of fire not admissible because it was "mere opinions or conclusions"); Sanfilippo v. Sanfilippo, 637 S.W.2d 77, 79 (Mo. App. E.D. 1982) (content of statutorily authorized report of juvenile officer improperly received on child custody issue in dissolution proceedings); Ensminger v. Stout, 287 S.W.2d 400, 406-07 (Mo. App. W.D. 1956) (patrolman's auto accident report properly excluded where it contained conclusions from other than first hand knowledge).

³⁵ There is precedent for admission under the Missouri common law of opinions and conclusions required by law to be recorded by medical doctors. See McCarthy v. Board of Trustees of the Firemen's Retirement Sys. of St. Louis, 462 S.W.2d 827, 830 (Mo. App. E.D. 1970); Edwards v. Fireman's Retirement System of St. Louis, 410 S.W.2d 560, 568 (Mo. App. E.D. 1966); Hay v. Schwartz, 982 S.W.2d 295, 301 (Mo. App. W.D. 1998); Knapp v. Missouri Local Government Employees Retirement Sys., 738 S.W.2d 903, 912 (Mo. App. W.D. 1987); and Woods v. National Aid Life Ass'n, 87 S.W.2d 698, 701 (Mo. App. S.D. 1935).

³⁶ 996 S.W.2d 47, 57 (Mo. banc 1999).

³⁷ Id.

³⁸ 250 S.W.2d at 700.

³⁹ Id.

⁴⁰ Rodriguez, 996 S.W.2d at 57.

⁴¹ Id.

⁴² In order to admit hearsay under the common law public record exception, it may also be necessary to show that a public official made or kept the record pursuant to a statutory mandate. Snider v. Wimberly, 209 S.W.2d 239, 241 (Mo. 1948) (stating "[t]here is a well established exception to the hearsay rule admitting official reports made by an officer on the basis of his own personal investigation and knowledge, at least when required by statute, ordinance, rule or regulation."). This is not a widely adopted rule in other jurisdictions, and it has been 60 years since a Missouri court denied a record on this basis. See White v. Hasburgh, 124 S.W.2d 560, 565 (Mo. App. W.D. 1939). Therefore, Missouri may no longer recognize such a rule.

⁴³ Bynote v. National Super Mkts., Inc., 891 S.W.2d 117, 125-26 (Mo. banc 1995).

⁴⁴ The Frye standard requires that the methods used in forming an opinion be generally accepted in the scientific community. Alsbach vs. Bader, 700 S.W.2d 823, 828-30 (Mo. banc 1985).

⁴⁵ See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

⁴⁶ Evinger v. McDaniel Title Co., 726 S.W.2d 468 (Mo. App. W.D. 1987); Killian Const. Co. v. Tri-City Const. Co., 693 S.W.2d 819 (Mo. App. W.D. 1985).

⁴⁷ 996 S.W.2d 47 (Mo. banc 1999).

⁴⁸ See U.S. Constitution, Article I, Section 5, clause 3 ("Each house shall keep a journal of its proceedings, and from time to time publish the same . . .").

⁴⁹ 860 S.W.2d 335, 337 (Mo. banc 1993).

⁵⁰ State v. Sladek, 835 S.W.2d 308, 313 (Mo. banc 1992) (Thomas concurring).

⁵¹ Id.

⁵² Criminal defendants likely enjoy enhanced protection against the admissibility of unfairly prejudicial evidence. In State v. Burns, 978 S.W.2d 759 (Mo. banc 1998), the Court found a statute mandating the admission of propensity evidence against a criminal defendant unconstitutional. The Court found that when trial judges are not given discretion to exclude unfairly prejudicial propensity evidence, criminal defendants may be convicted for the uncharged acts in violation of Article I, §§ 17 and 18(a) of the Missouri Constitution.

⁵³ See footnote three.

⁵⁴ See Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692, 700 (Mo. 1952) (statement in fire department report regarding cause of fire not admissible because it was "mere opinions or conclusions"); Sanfilippo v. Sanfilippo, 637 S.W.2d 77, 79 (Mo. App. E.D. 1982) (contents of statutorily authorized report of juvenile officer improperly received on child custody issue in dissolution proceedings); and Callahan v. Connecticut General Life Ins. Co., 207 S.W.2d 279, 286-87 (Mo. 1947) (conclusion of a medical doctor in a death certificate inadmissible).

⁵⁵ Rodriguez, 996 S.W.2d at 57.

⁵⁶ Id. at 72.

⁵⁷ The Fifth and Eleventh Circuits held that "factual findings" do not encompass opinions and conclusions. See Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir. 1980); Rainey. v. Beech Aircraft Corp., 827 F.2d 1498 (11th Cir. 1987). All other circuits confronting the issue held that "factual findings" did encompass opinions and conclusions. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-2 (1988).

⁵⁸ 488 U.S. 153 (1988).

⁵⁹ Id.

⁶⁰ James H. Wigmore, Wigmore on Evidence § 1633a (Supp. 1991).

⁶¹ Id.

⁶² McKinnon v. Skil Corp., 638 F.2d 270, 278-79 (1st Cir. 1981).

⁶³ Osterneck v. E.T. Barwick Indus., Inc., 106 F.R.D. 327, 333-34 (N.D. Ga. 1984).

⁶⁴ Hedgepeth v. Kaiser Foundation Health Plan of the Northwest, 76 F.3d 386 (9th Cir. 1996).

⁶⁵ Fraley v. Rockwell Int'l Corp., 470 F. Supp. 1264, 1267 (S.D. Ohio 1979).

JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 2 - March-April 2002