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Respondent contends that the trial testimony of Hodges and
Hogue is a statement of a public agency for purposes of rule
803(8)(C) of the Federal Rules of Evidence. We recognize that
the word "statement", viewed in isolation, could refer to an oral
communication. If rule 803 of the Federal Rules of Evidence
referred to statements by "an employee of" a public agency, we
might agree with respondent that oral testimony could be a
"statement" for purposes of that rule. However, the phrase "an
employee of" does not appear in rule 803(8) of the Federal Rules
of Evidence. Thus, we think the phrase a "statement * * * by a
public agency" does not include an oral statement by an
individual agency employee; instead, we think it refers to a more
formal, written document which was reviewed, approved, or subject
to a clearance process of some sort that transforms it from a
statement by an employee of an agency to a statement "by" the
agency.
Respondent does not cite and we have not found a case where
trial testimony was admissible as a record or report of a public
(...continued)
however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (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 lack of
trustworthiness.
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