3d DCA Watch — Can I Get A Witness Edition?

Hi kids, today is the bestest day in the whole wide world!


The above language is taken from footnote two of Judge Shepherd’s opinion in Arce v. Wackenhut, the money graf as follows:

Arce has expressly rejected, both here and below, reliance upon any other hearsay exception in this case, including—most emphatically—the business records exception. A court’s promise of strict neutrality among those who place their confidence in it for resolution of their differences counsels us against

consideration of a ground for a decision that a contestant—in this case, Arce—has expressly stated he does not wish to be considered.

I guess this is judicial-speak for “counsel, you’re on your own.”

It’s unclear why plaintiff’s counsel didn’t rely on the business records hearsay exception as an alternative ground to the public records exception, although reading the dissent I have some ideas.

As is usually the case when the Court rules in a way that appears unjust or unfair, there is the requisite (but not legally binding) expression of empathy:

We express some degree of sympathy for Arce. He might have been legally maligned by his former employer to the FBI. That also might have been the reason his conditional offer of employment was withdrawn. The FBI says it receives so many requests for information each year that it cannot be bothered to produce a witness at some convenient time to either assist one of the citizens it serves, or dispel his belief concerning why he did not get the job. Absent a witness, Arce’s case is lost. As an agent of the sovereign, the FBI has every right to behave in such a way as to deliver this result. However, it strikes us that this action is uncharacteristic of the “Government of the People, by the People and For the People,” famously envisioned by Abraham Lincoln in his Gettysburg address over 140 years ago.


Judge Cortinas, however, sees it a bit differently:

Given the importance of this potentially admissible evidence to appellant’s case, the trial court erred by granting Wackenhut’s motion precluding the introduction of the FBI Records into evidence and denying Arce’s motion for an order outlining the manner of certification required by the trial court.

That’s why they have that court of last resort in Tally, I guess.

Gotta love this town!