The “ancient documents” exception to the hearsay rule is under attack. Specifically, the Judicial Conference Advisory Committees on Evidence Rules has proposed abrogating Federal Rule of Evidence 803(16). Usually, out of court statements (“hearsay”) are not admissible as evidence. There are many exception to this general rule. One longstanding exception has been for “ancient documents” under Rule 803(16): “A statement in a document that is at least 20 years old and whose authenticity is established.”
The Committee is accepting public comments on line until February 16, 2016. I submitted the following comment:
The “ancient documents” exception to the hearsay rule is the most valuable evidentiary rule in my law practice and the one I depend on the most in representing my clients. I urge this committee to abandon its plan to abrogate FRE 803(16).
I represent adults who were sexually abused as children in claims against the Boy Scouts of America; churches including the Mormon or LDS Church, the Catholic Church, the Methodist Church, and the Seventh Day Adventist Church; schools; and other youth serving organizations. Oregon and other states have recognized the psychological reality that victims of child sexual abuse often are unable to recognize their injuries or the causal connection between their injuries and their childhood abuse for decades. These states have reformed their statutes of limitations to allow adults to bring claims against these institutions years after the abuse occurred.
The evidence necessary to prove claims for child sexual abuse that occurred many years ago is often found in “ancient documents.” These documents show what the defendants knew about child molesters in their ranks, when they knew it, and what these defendants did with that knowledge. Too often, the response was unreasonable or even, when it amounted to covering up a known danger, fraudulent. The documents proving the defendants’ notice and documenting their actions may be files and records kept by the defendants or, in the case of fraud claims, public statements made by the defendants but recorded in public documents. While these documents “appear authentic” as required by FRE 803(16), they may be difficult to actually authenticate.
The best example of ancient documents are the Boy Scouts “Perversion Files” or “Ineligible Volunteer Files” created by the BSA from at least the 1920s to the present. I was one of the trial attorneys representing the Plaintiffs in the Portland trial of Jack Doe 1, et al, v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints, et al, Multnomah Co. Cir. Ct. Case No. 0710-11294, better known as the Lewis v. BSA case, that resulted in a $19.9 million verdict in 2010. Over 1,200 of BSA’s “Perversion Files” on accused child molesters were admitted into evidence in that trial under Oregon’s version of the ancient documents exception to the hearsay rule. These documents were later made public by order of the Oregon Supreme Court, en banc, 352 Or. 77 (2012), and are available on line in a database maintained by the LA Times.
The BSA’s Perversion Files on accused child molesters typically contain a “Confidential Record Sheet” that is a form created by BSA and filled out by a local Boy Scout Council executive working with the national BSA office to create the file. The form includes identifying information on the individual who is the subject of the file. Most of the documents in the files are correspondence between the Council executive and the BSA employee in the national office responsible for creating and maintaining the files concerning the accusations against the volunteer and the steps taken to remove him from Scouting. Other documents in the files may be copies of newspaper clipping concerning criminal actions, letters from the accused volunteer, letters or statements from parents or other witnesses, a few police or court records, and miscellaneous Boy Scout accounting and registration forms.
Attached is an example of a BSA Perversion File from a recent Oregon case, G.P. v. BSA, Multnomah Co. Cir. Ct. Case No. 14CV05531. This is the file for an Oregon assistant Scoutmaster named Clyde Brock (who died in 2001) whose file is an example of how the Boy Scouts covered up the risk of pedophiles targeting Scouts. BSA opened this Perversion File on Brock in 1968 after warning him on two occasions to stop taking nude pictures of young Scouts. In 1968, Brock was accused of molesting 12 boys in his troop. Rather than informing the parents of the molested boys or the police of Brock’s crimes, BSA allowed him to resign for “health reasons” and even suggested that he be honored at a 50th anniversary Scout dinner to “help to allay questions about his retirement from the troop.”
Individual documents in Clyde Brock’s or the other files are arguably admissible as non-hearsay “notice” evidence, excluded from the hearsay rule as admissions of a party opponent, or are admissible under other exceptions to the hearsay rule such as the business records exception or the (always risky) catch-all exception. But the effort and inefficiency of arguing the admissibility of every page – and every secondary or tertiary hearsay statement within each page – would make the battle almost impossible for most plaintiffs. Only the ancient documents rule can cut through all these irrelevant, time-wasting, side arguments to allow in relevant, authentic evidence to prove these claims.
The Perversion Files document BSA’s decades of knowledge of a substantial risk of sexual abuse to the boys in Scouting that BSA covered up from the families involved. These documents are the basis of the fraud and negligence claims that we have successfully prosecuted against BSA and its local Councils in Oregon, Idaho, and other states. The powerful story these documents tell allows some few of the thousands of boys who were abused in Boy Scouts to finally get justice.
As long as there are cases that need actual “ancient documents” as evidence, do not abrogate FRE 803(16) because you think it no longer applies in this digital age. Old documents still exist, locked away in file cabinets and bankers boxes and historical archives. Juries need to see these documents. Let them.