parolee disavowed earlier admission and a later letter by the probation officer indicated that he might have qualified some statements). To the extent that Prellwitz created a presumption of reliability, then, it appears to be rebuttable.
However Prellwitz is interpreted, eyewitness police reports cannot be considered conventional substitutes for live testimony, and their reliability is therefore neither automatic nor presumed. Police reports of any kind are "inherently more subjective than laboratory reports of chemical tests," see Bell, 785 F.2d at 643, and, although the parole officer-parolee relationship is also marked by a certain subjectivity, see Carson, 540 F.2d at 1164, a police officer's description of events as he witnessed them lacks the objective certainty of a parole officer's report of absenteeism and tardiness. Cf. Burkhalter, 588 F.2d at 607. These reports, in a literal sense, may be reports kept in the ordinary course of business, and they "may be demonstrably reliable evidence of the fact that an arrest was made, [but] they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true." Bell, 785 F.2d at 644 (citing United States v. Pattman, 535 F.2d 1062 (8th Cir. 1976)); see also United States v. King, 613 F.2d 670, 673 (7th Cir. 1980) (acknowledging the unreliability of eyewitness police reports).
Indeed, police reports are explicitly excluded from the Rule 803(8) of the Federal Rules of Evidence, which establishes an exception from the hearsay rule for public records and reports. Although we recognize that the police record exception applies only "in criminal cases" and that in any case, parole revocation proceedings are not bound by the Federal Rules of Evidence, see F.R.E. 1101(d)(3), the rationale behind this exception bespeaks a concern about the reliability of police reports; Congress was apparently motivated by a perception that "'observations by police officers at the scene of the crime of the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases'" and that the reports are "'frequently prepared for use of prosecutors, who use such reports in deciding whether to prosecute.'" 4 J. Weinstein & M. Berger, supra p. 3, para. 803(8), at 238-39 (quoting Senate Judiciary Committee Report). It is the initial encounter between the police and the arrestee that is adversarial; the relationship is no less adversarial where the subject of the report is a parolee, see Bell, 785 F.2d at 644, and the report no more reliable when used in a parole revocation hearing rather than a criminal trial.
Similarly, courts have refused to permit the use of police reports by the prosecution in criminal trials under the "Records of Regularly Conducted Activity" exception, F.R.E. 803(6), which does not contain an explicit clause excluding police reports from the realm of admissible business records. And although the confrontation clause informs this line of cases, the primary reason for the exception is the "litigation records" doctrine of Palmer v. Hoffman, 318 U.S. 109, 87 L. Ed. 645, 63 S. Ct. 477 (1943), borrowed from the civil litigation context, which prohibits the use of any document prepared in anticipation of litigation; such evidence is "'dripping with motivations to misrepresent'" and accordingly lacks the trustworthiness necessary to qualify under the business records exception. See United States v. Smith, 172 U.S. App. D.C. 297, 521 F.2d 957, 965-66 (D.C. Cir. 1975) (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942)); cf. United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957) (refusing to admit police reports under the business records exception because the reports "lack the necessary earmarks of reliability and trustworthiness"; "litigation records" doctrine not mentioned).
We cannot agree with the Board's position, therefore, that eyewitness police reports as a general matter bear sufficient indicia of reliability as to be admissible in parole revocation hearings without first inquiring into their trustworthiness. See Faheem-El, 620 F. Supp. at 1323. But despite the questionable reliability of these reports, a rule categorically excluding them from revocation hearings would defy the mandate of Morrissey. See Faheem-El v. Klincar, 620 F. Supp. at 1323 n. 20. The presence of other indicia of reliability, such as corroboration by the parolee himself or by collateral sources, see Bell, 785 F.2d at 644, a highly detailed description in the report, see id., or a conviction on the crimes alleged in the report, cf. Gholston v. Jones, 848 F.2d 1156, 1159-60 (11th Cir. 1988), may render the reports admissible. See Bell, 785 F.2d at 644. This determination, however, must be made on a case-by-case basis. See Faheem-El, 620 F. Supp. at 1323; Bell, 785 F.2d at 644.
B. Police Reports based on Third-Party Information
In their memorandum, the defendants propose not only that eyewitness police reports be admissible in parole revocation hearings but also that police reports based on information received from third parties be admitted unless certain concerns are present (Defendant's Memorandum at 10). Downie proclaims in his memorandum that the issue of the admissibility of reports based on the statements of third-party witnesses was resolved in a settlement conference (Plaintiffs' Memorandum at 2). Despite the befuddling suggestion that the defendants are "proposing" a solution, then, we assume that there is no dispute between the parties. We note here, however, that third-party reports, which are essentially double hearsay, are generally less reliable than eyewitness reports. See Smith, 521 F.2d at 964; cf. Bell, 785 F.2d at 644.
The Supreme Court has clearly announced that parole revocation hearings are meant to be informal and flexible, but the desire for flexibility should not eliminate procedures if that might jeopardize the accuracy of the fact-finding process. See Stokes, No. 88 C 10696. Defendants bring to this court's attention the fact that they afford parolees some rights that are not required by law, but this concession does not excuse the Board from providing those rights that are required. For the foregoing reasons, plaintiff's motion for summary judgment is granted and defendants' is denied. Eyewitness police reports may be admitted in parole revocation hearings but only upon a finding of reliability, to be determined on a case-by-case basis.
Downie v. Klincar,1991 U.S. Dist. LEXIS 3391