United States District Court, D. Oregon
ORDER SUSTAINING IN PART PLAINTIFF'S OBJECTION TO
DEFENDANTS' EXHIBIT 203
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE.
House of Hope Recovery and Patricia Barcroft
(“Defendants”) offer the Oregon Bureau of Labor
and Industries' (“BOLI”) “No
Substantial Evidence Determination” report as a trial
exhibit. (ECF No. 123, Att. 1.) Defendants confirmed at the
pre-trial conference that they seek to introduce as
impeachment evidence only a statement in the report
attributed to Plaintiff Constance George
(“George”). George objects to the exhibit on the
basis of hearsay and unfair prejudice. (ECF No. 119.)
Court concludes that George's statement in the BOLI
report is inadmissible hearsay and may not be admitted as
evidence at trial to prove its truth. However, depending on
George's testimony at trial, her statement may be used
for impeachment, subject to the limitations set forth below.
Hearsay within Hearsay
does not dispute the trustworthiness of the BOLI report, and
it therefore qualifies as a public record under Federal Rule
of Evidence 803(8). See Chandler v.
Roudebush, 425 U.S. 840, 863 n.39 (1976). However, the
report recounts assertions made by George during George's
initial interview, which are, themselves, potentially
excludable hearsay. Specifically, Defendants seek to
introduce the following statement in the report attributed to
George: “[C]omplainant stated that she did not really
believe [Defendants] discriminated against her because of her
race.” (ECF No. 123, Att. 1 at GEORGE 000102.)
is no evidence in the record that George submitted to the
BOLI interview under penalty of perjury, so the statement in
the report does not qualify as a prior statement by a
witness, even if Rule 801(d)(1)(A)'s other conditions are
met at trial. Additionally, while the report writer
attributes the statement to George, George did not sign the
report or otherwise adopt it, so the statement does not
qualify as one by a party opponent under Rule 801(d)(2)(A).
See U.S. v. Felix-Jerez, 667 F.2d 1297, 1299 (9th
Cir. 1982). Defendants do not argue that the statement
qualifies for any other hearsay exception. (ECF No. 123.)
Therefore, at this point in the proceedings, George's
statement in the BOLI report is inadmissible hearsay.
assert that they will use the statement only for impeachment
purposes, and not to prove the truth of its content, making
it nonhearsay under Rule 801(c)(2). (ECF No. 123 at 2-3.) An
otherwise inadmissible statement may be used for impeachment
under appropriate circumstances and with a limiting
instruction admonishing the jury to consider it for
impeachment only. See U.S. v.
Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990).
Whether such an impeachment opportunity will arise will
depend upon George's testimony at trial.
contend that the statement at issue “directly conflicts
with the entire basis for the instant lawsuit.” (ECF
No. 123 at 3.) That is an overstatement. First, according to
the BOLI report, George did identify an example of what she
perceived to be a racially discriminatory remark by Defendant
Complainant [George] based her allegations of race
[discrimination] on a comment made by Respondent Patricia
Barcroft, Director of House of Hope Recovery when Complainant
was interviewed for housing. The comment itself is disputed;
Complainant's version is that Respondent Barcroft asked
her how she felt about “white people.” . . .
Complainant admits that this is the only statement she felt
was racially discriminatory; . . ., during the
Complainant['s] initial interview, [C]omplainant stated
that she did not really believe Respondent discriminated
against her because of her race.
(ECF No. 123, Att. 1 at GEORGE 000101.) Second, because the
BOLI report does not provide a transcript of the interview,
the full context of George's statement is unknown. What
is known is that BOLI conducted this interview while
investigating George's discrimination complaint. (See
id. (“Complainant alleges that she was unlawfully
discriminated against because: a. her race being African
American and B. her religion, being a Jehovah
witness.”)) Even accepting the accuracy of the
statement, when taken out of its full context its probative
value may be easily outweighed by the risk of unfair
prejudice. SeeFed. R. Evid. 403. For these reasons,
the Court will not permit Defendants to use this statement to
impeach George's testimony generally.
George testifies at trial and makes a statement that directly
contradicts what she told the BOLI report writer
(i.e., if George volunteers on direct examination
her subjective beliefs about whether Ms. Barcroft
discriminated against her based on race), then Defendants may
use George's statement to the BOLI report writer to
impeach that testimony. SeeFed. R. Evid. 607;
see also U.S. v. Castillo, 181 F.3d 1129,
1132 (9th Cir. 1999) (explaining impeachment by contradiction
as distinct from Rule 608's general prohibition against
extrinsic evidence). Defendants may not elicit such testimony
from George for the first time on cross-examination for the
purpose of setting up the impeachment opportunity.
See Id. at 1133-34; U.S. v.
Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir. 2009).