Solomon v. Shuell

457 N.W.2d 669, 435 Mich. 104

• Court: Michigan Supreme Court
• Decided: July 3, 1990
• Docket: 82658, (Calendar No. 1)
• Status: Published

Opinions

Archer, J.

We granted leave to appeal in order to consider two principal questions. The first question is whether four police reports were properly admitted into evidence under either MRE 803(6), the business records exception to the hearsay rule, or MRE 803(8), the public records hearsay exception. The second question is whether the jury was properly instructed on the so-called rescue doctrine. We would hold that the police reports were improperly admitted into evidence and that the jury was improperly instructed on the rescue doctrine. We therefore would reverse the judgment of the Court of Appeals and remand the case for a new trial.

i

Plaintiff-appellant Charlotte Solomon, personal representative of the estate of Joseph Solomon, filed this wrongful death action against the City of Detroit and Detroit Police Officers John Shuell, Michael Hall, and Richard Nixon after Officer Shuell shot and killed her husband on March 20, 1981.

Officers Shuell and Nixon were members of the department’s Western Surveillance Unit. Sergeant Hall was their supervisor. The three officers were plain clothed and drove separate unmarked automobiles.

On March 19 and 20, 1981, the officers were investigating a series of armed robberies on Detroit’s west side. Prior to March 19, four armed men had stolen two cars from two separate automobile dealership salesmen while on test drives. Both robberies were at gunpoint. After reporting the robberies, both salesmen told the police that the perpetrators had driven to their dealerships in a Ford Thunderbird, license plate number SYF-830. The Thunderbird was registered to Claudia Williams, and the police began an undercover surveillance of her home at 18603 Curtis Street in Detroit.

On March 20, at 2:30 p.m., Officers Shuell and Nixon were assigned to the surveillance of Curtis Street in plain clothes and in separate unmarked vehicles. Alvin Solomon, Joseph Solomon’s son, and a male passenger arrived in an Oldsmobile at the Curtis Street house and picked up two more men. After informing Sergeant Hall, who was also on duty in his own unmarked car, the officers were ordered to follow the Oldsmobile. They followed it to 20045 Ward, where two of the men got out of the vehicle. The car drove on, and the officers continued to follow the vehicle but lost it in traffic.

Sergeant Hall ordered the officers to return to Ward Street and watch the house. Later that afternoon, the two suspects, who had previously entered 20045 Ward, left the residence. Sergeant Hall and Officers Nixon and Shuell then stopped and questioned the suspects as they walked down the block away from the house.

At approximately the same time as the two suspects were being questioned, another police officer radioed Shuell and Nixon and told them that the Ford Thunderbird used in the armed robberies had returned to the Curtis Street address. Sergeant Hall ordered Shuell and Nixon to return to Curtis Street. Along the way, Nixon spotted the Oldsmobile driven by Alvin Solomon. Alvin, now accompanied by his girl friend, Wynee Green, was driving north on Strathmoor Street. Nixon relayed the information to Shuell and Sergeant Hall and followed the Oldsmobile to 20045 Strathmoor, the Solomon family home. Nixon pulled up behind the Oldsmobile. Shortly thereafter, Shuell stopped in front of the suspect’s automobile. The two officers got out and approached the Oldsmobile. The account of what happened next differs according to the trial testimony.

Alvin testified that, after he got out of his car, Nixon rushed him, quickly flashed a badge, threw him toward the car, and confiscated a pellet gun that he carried in his waistband. Shuell ran toward the two, failed to identify himself as a police officer, put his gun to Alvin’s head and dragged him to the rear of the car. Alvin told Wynee to get his father, Joseph Solomon, who came outside with a gun, which was pointed down toward the ground. Neither Nixon nor Shuell identified themselves to Alvin’s father. Before Joseph Solomon could come off the front porch, Shuell fired his gun, striking him. Joseph Solomon kept approaching Shuell and Alvin and fell dead at the end of the driveway.

Charlotte Solomon, Alvin’s mother and Joseph’s wife, testified that, at the time of the incident, she and her husband were inside their home watching television. Joseph got up, briefly left the room and came back in and said, "[sjomebody got my child out there.” He went outside with his gun and yelled, "[t]urn my child loose.” Charlotte got to the doorway in time to see her husband fall at the end of the driveway.

Nixon testified that, as he approached the Oldsmobile, he showed Alvin his badge and id card and told him he was a police oflicer. As Alvin got out of the vehicle, Nixon saw a gun in Alvin’s waistband, which he confiscated. At this time, Shuell asked Alvin to put his hands on the car so he could be frisked. Alvin resisted, shouting at his girl friend to get his father. As Nixon walked around the car to restrain the girl, he heard a noise at the doorway of the house. Joseph Solomon ran out of the house and came off the porch holding a gun in both hands, extended in a combat stance. Nixon held his badge up and yelled, "Sir, we’re police officers, we’re police officers.” Nixon heard one shot, turned, and saw Joseph Solomon’s hands recoil. He then heard other shots, after which Joseph fell. Nixon also stated that neither Shuell nor he had drawn their guns before Joseph Solomon came out of the house.

Shuell testified that both Nixon and he approached the car, showed Alvin their badges, and told him they were police officers. As Alvin got out of his car, Shuell told Nixon he saw a gun in Alvin’s waistband and grabbed Alvin by his left wrist. Shuell told Alvin he was under arrest, and asked him to place his hands on the car. Alvin backed away from the car and told his girl friend to get his father. Shuell told Alvin to go to the rear of the car and put his hands on the trunk. Shuell was frisking Alvin when Nixon yelled, "Police, police, John, look out, he’s got a gun.” Joseph Solomon assumed a two-hand stance and aimed his gun at Shuell. As Shuell grabbed Alvin, Joseph told Alvin to get down. Alvin shouted, "Daddy, don’t do it.” Shuell yelled, "Drop the gun. Police.” As Shuell fell to the ground with Alvin, his pistol was still in its holster. Joseph fired one shot, which missed Shuell. By this time, Shuell had drawn his weapon and returned Joseph Solomon’s fire.

Joseph Solomon fired at least one shot. Shuell fired nine, eight of which hit Solomon, instantly killing him.

Plaintiff-appellant filed the present case in Wayne Circuit Court. She alleged negligence, assault and battery, and the violation of her husband’s constitutional rights. Before the case went to the jury, defendant Nixon had been dismissed. In addition, the trial judge granted a directed verdict in favor of defendants Michael Hall and the City of Detroit.

As to defendant Shuell, the jury returned a special verdict, finding that Shuell was negligent and that his negligence was a proximate cause of Joseph Solomon’s death. Consequently, the jury found plaintiff’s damages to be $100,000. The jury also found, however, that decedent was negligent and that his own negligence was also a proximate cause of his death and assessed this at eighty percent. Accordingly, a judgment was entered in favor of plaintiff for $20,000.¹

Plaintiff subsequently filed a claim of appeal, alleging that the trial court had improperly admitted four exhibits into evidence and had improperly instructed the jury. The Court of Appeals panel, one judge dissenting, rejected plaintiff’s argument that the trial court improperly admitted into evidence four police reports under MRE 803(6), the business records hearsay exception. Although two members of the panel agreed with plaintiff that the trial court also committed error by giving a modified version of SJI2d 13.07, stating the so-called rescue doctrine, the Court found this error to be harmless.² The Court of Appeals, therefore, affirmed the decision of the trial court. 166 Mich App 19; 420 NW2d 160 (1988).

Plaintiff-appellant subsequently applied for leave to appeal in this Court, which we granted on April 11, 1989, limited to the issues (1) whether the trial court improperly admitted into evidence four police reports prepared during the investigation of decedent’s shooting, and (2) whether the trial court properly instructed the jury on the so-called rescue doctrine. 432 Mich 891 (1989). Subsequently, we ordered the parties to submit supplemental briefs on the applicability of MRE 803(8), the public records hearsay exception, to the four police reports. We also invited amicus curiae briefs to be filed. The order was entered on October 24, 1989.

ii

The first question presented is whether four police reports were improperly admitted into evidence. Plaintiff’s exhibit 113 and defendant’s exhibit 122 are police department homicide witness statements taken during the investigation of decedent’s death. Both witness statements are in question and answer form. Plaintiff’s exhibit 113 contains Nixon’s version of the decedent’s shooting, and defendant’s exhibit 122 contains Shuell’s.

Plaintiff’s exhibit 34A and defendant’s exhibit 121 are preliminary complaint reports, the initial report an officer writes detailing his actions during a particular assignment. A preliminary complaint report is the starting point for the subsequent interdepartmental investigation of an incident. Plaintiff’s exhibit 34A is a supplementary report Sergeant Hall wrote describing in detail his conversation with Officer Shuell immediately following decedent’s shooting. Defendant’s exhibit 121 is Officer Shuell’s report describing his actions during the events leading up to decedent’s death.

At various points during the trial, the defense moved to admit each exhibit. The trial court admitted each exhibit over plaintiff’s timely objection, and the Court of Appeals affirmed.

Before this Court, the parties concede that the four exhibits are defined as hearsay, MRE 801(c).³ The exhibits are, therefore, inadmissible under MRE 802,⁴ unless subject to an MRE 803 exception.⁵ Consequently, we must determine whether the Court of Appeals correctly held that the four reports were properly admitted into evidence and that the trial court did not abuse its discretion when it overruled plaintiff’s timely objection. Hadley v Trio Tool Co, 143 Mich App 319, 328; 372 NW2d 537 (1985). See People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982).

A

Plaintiff-appellant first argues that the four exhibits are inadmissible under the business records exception to the hearsay rule. MRE 803(6) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * #

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, or events, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.™

The defense offered the four exhibits over plaintiff’s timely objection. Before the trial court, plaintiff argued that, even if the reports were "records” within the meaning of MRE 803(6), the source of information and the circumstances of preparation lacked trustworthiness. Plaintiff reasoned that the reports and homicide witness statements were untrustworthy because when the documents were prepared, the police officers knew they were the subject of a homicide investigation that could result in criminal prosecution, civil liability, and interdepartmental discipline. In addition, the four documents were prepared following a waiver of Miranda^{6 7} rights and in the presence of counsel.⁸

Although the trial court noted the circumstances under which the reports were prepared, it nevertheless rejected plaintiff’s argument that the exhibits lacked trustworthiness. As to the motivation to misrepresent, the court acknowledged that the officers could have made their statements in a light most favorable to protect their relationships and avoid interdepartmental sanctions and potential criminal and civil liability. In addition, the court also held, in effect, that the issue of trustworthiness under MRE 803(6) went to the credibility and weight the jury should assign each exhibit and not to admissibility. Because plaintiff could not point to specific facts on the face of each exhibit indicating a lack of trustworthiness, the court overruled plaintiff’s objection and admitted each exhibit into evidence.

On appeal, two Court of Appeals panel members affirmed. Judge Shepherd, in dissent, however, would have found that the trial court’s ruling amounted to prejudicial error requiring reversal because "the motivation to misrepresent is obvious.” 166 Mich App 31. The narrow issue presented under the hearsay business records exception, consequently, is whether the trial court improperly held that the four reports satisfied the trustworthiness requirement of MRE 803(6).⁹

It is beyond dispute that the presumed trustworthiness of both the source of information reported and the accuracy with which the information is recorded lies at the heart of the business records hearsay exception as it was conceived by the common law, promulgated in model, uniform, and state statutes, and, finally, adopted and enacted in the current Rules of Evidence. We unanimously concluded in Central Fabricators v Big Dutchman, 398 Mich 352; 247 NW2d 804 (1976), that an interoffice memorandum of a purported telephone conversation was inadmissible under MCL 600.2146; MSA 27A.2146,¹⁰ the statutory precursor of MRE 803(6). In Central Fabricators, we noted that trustworthiness is furnished not merely from the high degree of reliance placed upon business records, but also from the circumstances under which traditional business records are prepared:

The exception to the hearsay rule for records made in the regular course of business

"is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regularity and continuity of the records is calculated to train the record-keeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.” McCormick’s Handbook of the Law of Evidence (2d ed), §306, p 720. [Central Fabricators, supra, pp 356-357.]

The current business records hearsay exception codified in MRE 803(6) and its federal counterpart, FRE 803(6), derives from two separate and distinct common-law exceptions to the hearsay rule, the shop book rule and the regular entries rule. 5 Wigmore, Evidence (Chadbourn rev), § 1518, pp 426-430; McCormick, Evidence (3d ed), § 305, p 871. The rules were limited in scope and imposed stringent foundation requirements on the parties offering evidence.¹¹ Notwithstanding the common law’s limitations that in the modern commercial context would seem unduly burdensome and have been appropriately rejected by the modern rules, the justifications for these two common-law hearsay exceptions were soundly rooted in the rationale for excluding hearsay evidence in the first place¹² and continue to be so to this very day.

Ideally, a witness’ testimony is evaluated while the witness is under oath, subject to cross-examination, and personally present before the trier of fact. People v Kirtdoll, 391 Mich 370, 386, n 8; 217 NW2d 37 (1974); FRE Advisory Committee Note, 56 FRD 183, 288 (1972). See also Colgrove v Goodyear, 325 Mich 127, 134; 37 NW2d 779 (1949). While the definition of hearsay, both at common-law and under the current rules as well, would exclude much probative evidence where one or more of these ideal conditions is lacking, the common-law hearsay exceptions recognized that, when evaluated in light of two principles, hearsay evidence was in limited circumstances as sufficiently reliable as evidence given under ideal conditions. Wigmore, supra, §§ 1420-1423, pp 251-255. Under the principle of necessity, the admission of hearsay evidence was justified not merely to avoid the loss of a person’s evidence because the witness may be unavailable to personally testify, but also to admit evidence, such as an excited utterance, that may derive from an inherently superior source. Wig-more, supra, § 1421, p 253. The second principle, the circumstantial probability of trustworthiness, arose from the fact that, under certain circumstances, the trustworthiness of the source of information and the accuracy of recording is sufficiently great to be the equivalent of a statement given under the ideal conditions of oath, cross-examination, and in the presence of the trier of fact. Wigmore, supra, § 1422, pp 253-254.

It is under the circumstantial probability-of-trustworthiness principle, and to a lesser extent the necessity principle, that the traditional common-law business records exception was premised. Specifically, the circumstantial probability of trustworthiness of traditional business records is sufficiently great to justify an exception to the hearsay rule because of habit, the detection of errors, and an employer’s reliance on the result. Wigmore, supra, § 1522, pp 442-443. Habit, or the regular and systematic preservation of information, by its very nature calls for accuracy. Id. Consequently, errors or unintentional misstatements are almost certain to be detected. Id. Furthermore, if the employee preparing the report is under a duty to do so or is aware of his employer’s general reliance on the accuracy of the records, a powerful motivation to be accurate is supplied. Id.

It is clear that the traditional business records hearsay exception is justified on grounds of trustworthiness: unintentional mistakes made in the preparation of a record would very likely be detected and corrected. Where, however, the source of information or the person preparing the report has a motivation to misrepresent, trustworthiness can no longer be presumed, and the justification for the business records exception no longer holds true. Wigmore, supra, § 1522, pp 442-443, § 1527, p 448; McCormick, Evidence, § 308, pp 875-878. Thus, in Central Fabricators, supra, we found the leading case of Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), persuasive authority supporting the proposition that the motivation to misrepresent is a strong indicator of a lack of trustworthiness. In Palmer, the United States Supreme Court held that a railroad accident report was not made "'in the regular course’ of the business,” a requirement by its nature ensuring trustworthiness, as defined in the federal business records hearsay statute.¹³ The Supreme Court reasoned that, although it may have been in the regular course of the railroad’s systematic operations to record its employee’s version of an accident, the admission of the report into evidence would make the act applicable to any recording system, "though it had little or nothing to do with the management or operation of the business as such.” 318 US 113. Thus, the Court concluded that the report was not made "for the systematic conduct of the enterprise as a railroad business. . . . [The report’s] primary utility is in litigating, not in railroading.” 318 US 114.

Although in Palmer the Supreme Court analyzed the issue in terms of whether the report was made in the regular course of railroad business as defined in the federal act, the motivation for making the report in the first place lies at the very heart of the act’s definition of "regular course of business,” and, in this respect, the opinion of the United States Court of Appeals for the Second Circuit in Palmer¹⁴ analyzed the report from a slightly different perspective while reaching the same result. The Second Circuit panel noted, as did the Supreme Court, that even though the railroad’s employee was under a duty to his employer to make the report, the circumstances surrounding the preparation of the report, such as the anticipation of highly probable litigation, took the report outside the special legal meaning of "regular course of business”:

Each trade has its peculiar jargon and courts rely on that jargon when it finds its way into a statute dealing with that trade.

And so with "regular course of business” as applied to records or memoranda in an evidence statute. To a layman, the words might seem to mean any record or paper prepared by an employee in accordance with a rule, established in that business by his employer. But according to the jargon of lawyers and judges those words, in discussions of evidence, have always meant writings made in such a way as to afford some safeguards against the existence of any exceptionally strong bias or powerful motive to misrepresent. [129 F2d 976, 984 (CA 2, 1942). Emphasis in the original.]

Thus, the Second Circuit concluded that the document was inadmissible under the federal act not merely because it may have been prepared to "perpetuate evidence” in anticipation of litigation, 129 F2d 991, but rather because the looming specter of potential liability supplied a powerful motivation to misrepresent. Because the railroad and its employee were exposed to highly probable litigation and potential liability, any possible errors in the report could no longer be considered mere misstatements. Consequently, the report was "dripping with motivations to misrepresent.” 129 F2d 991. Although the dissenting panel member noted that "there is hardly a grocer’s account book which could not be excluded on that basis,”¹⁵ 129 F2d 1002 (Clark, J., dissenting), Palmer has subsequently been read to stand for the proposition that the trial court, in its discretion, may exclude evidence meeting the literal requirements of the business records exception where the underlying circumstances indicate a lack of the trustworthiness business records are presumed to have. McCormick, supra, § 308, p 877.

As Palmer indicates, trustworthiness, under the current Rules of Evidence, no longer serves as a mere philosophical justification for the admission of evidence otherwise excluded as hearsay. Rather, under MRE 803(6) and FRE 803(6), trustworthiness is itself an express threshold condition of admissibility. First, the rule on its face provides that evidence otherwise meeting the literal requirements of MRE 803(6) and FRE 803(6) shall not be admissible where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” MRE 803(6), FRE 803(6) (emphasis added).

In addition, the evolution of the business records hearsay exception from its common-law origins to the current Rules of Evidence further supports this interpretation. Beginning in the 1920’s, various model and uniform acts were formulated to ease the burdensome restrictions that had developed under the common-law business records exception. Many of the limitations, such as the narrow definition of "business,” the requirements of "originality,” and the unavailability of all participants involved in the preparation of a record, no longer served to ensure the practical trustworthiness of the proffered evidence. McCormick, supra, §§ 305-306, pp 871-872; Wigmore, supra, § 1561a, pp 489-490. The 1927 Commonwealth Fund Act,¹⁶ which served as the model for the federal and Michigan statutory forerunners of the current Rules of Evidence, eliminated these restrictions which no longer comported with modern commercial practices. At the same time, the Commonwealth Fund Act ensured the trustworthiness business records were presumed to have by requiring that a "writing or record” was prepared "in the regular course of any business” and that "it was the regular course of such business” to prepare the "writing or record.”

The 1936 Uniform Business Records As Evidence Act¹⁷ further broadened and simplified the traditional business records exception. At the same time, however, the act expressly introduced the element of judicial discretion, directing the trial court to determine, as a matter of admissibility, whether "the sources of information, method, and time of preparation were such as to justify [a record’s] admission.”

Uniform Rule of Evidence 63(13)¹⁸ also expressly referred to "the judge,” and it provided for the trial court to determine not merely whether the "writing[]” was "made in the regular course of a business,” but also whether "the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” Because the uniform rule eliminated the requirement that the memorandum be prepared by a person with knowledge of the facts recorded, the rule’s policy was to expressly require the trial court to ensure that the proffered evidence had the trustworthiness business records traditionally were presumed to have.¹⁹ It is the uniform rule’s language of the trustworthiness element that most closely parallels that of the rule adopted by the United States Supreme Court,²⁰ which Congress ultimately enacted as FRE 803(6).

The evolution of the business records hearsay exception clearly indicates that FRE 803(6) and MRE 803(6) have eliminated burdensome common-law restrictions and have broadened the scope of the exception. In order to ensure the same high degree of accuracy and reliability upon which the traditional, but narrowly construed business records exception was founded, the current rules also recognize that trustworthiness is the principal justification giving rise to the exception. Thus, FRE 803(6) and MRE 803(6) provide that trustworthiness is presumed, subject to rebuttal, when the party offering the evidence establishes the requisite foundation. Even though proffered evidence may meet the literal requirements of the rule, however, the presumption of trustworthiness is rebutted where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Consequently, in cases like the present, the trial court, upon a party’s timely objection, must determine as a question of admissibility whether the proffered evidence lacks trustworthiness. Upon the basis of our review of this record, we conclude that the trial court improperly held that the proffered exhibits did not lack trustworthiness. We would hold, therefore, that, under the facts of this case, the four exhibits lacked trustworthiness within the meaning of MRE 803(6) and were improperly admitted into evidence.

The trial court improperly concluded that the sources of information and the circumstances under which the four police reports were prepared did not lack trustworthiness as that term is narrowly defined in MRE 803(6). As to the officer’s motivation to misrepresent, we agree with dissenting Judge Shepherd, that, in this case, the motivation to misrepresent is obvious and indicates a lack of trustworthiness. Officers Nixon and Shuell’s witness statements were taken during the course of the department’s homicide investigation, which they knew could result in a criminal prosecution. They, along with Sergeant Hall, would also be subject to the department’s internal affairs investigation, which could result in interdepartmental discipline. Finally, it was highly probable that the officers and the city faced civil litigation and potential liability. Although the trial court rejected this potential motivation to misrepresent as too speculative, it did recognize that even Officer Nixon, who did not fire a single shot at decedent, possibly was "anything but totally frank with thé homicide investigators.”

Rather than reject as speculative plaintiff’s argument that the officers had a motivation to misrepresent, we believe that, when the exhibits are viewed under the circumstances of their preparation, the motivation to misrepresent becomes clearer. Although the trial court noted that there is no evidence suggesting an improper motivation to misrepresent on the part of departmental homicide investigators and that proper departmental procedures were followed, it is these very same procedures that indicate a lack of trustworthiness as that term is defined under MRE 803(6). The homicide witness statements, for example, were taken following a waiver of Miranda rights, which could only heighten the officers’ awareness that anything said could and would be used against them in a court of law.²¹ In addition, the witness statements and the preliminary complaint reports were taken and prepared with the assistance of counsel, who would, at the very least, advise the officers not to make any inculpatory statements. The homicide statements were taken on March 25 and 26, five and six days following decedent’s shooting, which permitted time for reflection and deliberation not contemplated within the meaning of MRE 803(6). We conclude, therefore, that the homicide investigation reports, as well as the preliminary complaint reports, lacked trustworthiness and, when made under these circumstances and in light of the highly probable civil and criminal litigation and departmental discipline the officers potentially faced, were not the type of records contemplated by MRE 803(6).

The trial court also incorrectly analyzed the significance of trustworthiness under MRE 803(6). The trial court held in effect that, under MRE 803(6), trustworthiness and the presence of a self-serving motivation to misrepresent were questions for the jury and did not affect admissibility. We agree that the credibility and weight to be assigned to otherwise admissible evidence is a question for the trier of fact. We disagree, however, that, under MRE 803(6), trustworthiness is not also a question of admissibility. As the rule and its theoretical underpinnings indicate, trustworthiness is, under MRE 803(6), unlike MCL 600.2146; MSA 27A.2146, an express condition of admissibility. The flaw in the trial court’s reasoning was that its analysis was essentially a strict and literal interpretation of MCL 600.2146; MSA 27A.2146, which preceded MRE 803(6). Unlike the present rule, § 2146²² expressly provided that, once the appropriate foundation had been established, "[a]ll other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility.” Unlike §2146, MRE 803(6) now expressly provides that trustworthiness is a question of admissibility and is not an issue solely affecting the weight of the evidence.

We finally note that each exhibit is replete with multiple layers of hearsay within hearsay. Plaintiff’s exhibit 34A, Sergeant Hall’s preliminary complaint report, is typical, and it recounts a conversation Sergeant Hall had with Officer Shuell following decedent’s shooting. Under MRE 805,²³ hearsay within hearsay is excluded where no foundation has been established to bring each independent hearsay statement within a hearsay exception. See In re Freiburger, 153 Mich App 251, 260; 395 NW2d 300 (1986). Although the trial court agreed with plaintiff’s counsel that the exhibits were replete with multiple hearsay statements within hearsay, the court nevertheless overruled plaintiff’s timely objection. The court reasoned that plaintiff’s objection went to the weight and credibility the jury should assign each exhibit. We disagree, however, with the lower court’s ruling and reasoning. Because defendant failed to establish an appropriate foundation for each independent hearsay statement to fall within a hearsay exception, most, if not all, of the information contained in each report is inadmissible hearsay and was improperly admitted into evidence.

B

Plaintiff-appellant also argues that each exhibit is inadmissible under the public records exception to the hearsay rule. MRE 803(8) excepts from the hearsay rule:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCL 257.624; MSA 9.2324.[²⁴]

Because MRE 803(8)(A) is limited to "records or reports” describing the general activities of an agency per se, the four exhibits do not fall within subsection (A) since they relate to a single specific incident. Attorney General v John A Biewer Co, Inc, 140 Mich App 1, 16; 363 NW2d 712 (1985); Hewitt v Grand Trunk W R Co, 123 Mich App 309, 326-327; 333 NW2d 264 (1983).

The four exhibits are also inadmissible under MRE 803(8)(B), which excepts from the hearsay rule records of matters observed and reported pursuant to a duty. Although the four exhibits do meet the literal requirements of MRE 803(8)(B), they are nevertheless inadmissible because of the circumstances under which they were prepared and because they are replete with multiple layers of hearsay within hearsay.

As with the business records hearsay exception, MRE 803(6), inherent trustworthiness also lies at the heart of the public records hearsay exception codified in MRE 803(8). See FRE Advisory Committee Note, 56 FRD 183, 311 (1972). See also Wig-more, supra, §§ 1630-1632, pp 617-621. Chief Justice Riley, then a Court of Appeals judge, also noted in Hewitt v Grand Trunk W R Co, supra,25 that the rationale giving rise to the traditional public records exception was rooted not merely in the practical necessity of relieving public officials from becoming " 'a class of official witnesses,’ ” but rather in the high probability that the declarant would properly discharge his duty to make an accurate and reliable report:

McCormick’s treatise on the law of evidence explains the purpose, scope and justification for this exception:

"The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed. . . .

"A special need for this category of hearsay is found in the inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their statements. Not only would this disrupt the administration of public affairs, but it almost certainly would create a class of official witnesses. Moreover, given the volume of business in public officers, the official written statement will usually be more reliable than the official’s present memory.” McCormick, Evidence (2d ed), § 315, pp 735-736. [Hewitt, supra, p 326.]

Thus, the principle justification for excepting public records from the hearsay rule is trustworthiness, which is generally ensured when records are prepared under circumstances providing an official duty to observe and report.

Our Court of Appeals has previously taken into consideration the circumstances under which documents are prepared in order to determine whether they fall within the public records hearsay exception. In Attorney General v Biewer, supra, the Court concluded that documents prepared in anticipation of litigation do not fall within the scope of MRE 803(8)(B) because they lack trustworthiness. At issue in Biewer was whether several Department of Natural Resources memoranda, setting forth the costs the agency incurred during the investigation of defendant’s plant for ground water contamination, fell within the scope of MRE 8Q3(8)(B). The Court concluded the memoranda were beyond the scope of MRE 803(8)(B) not merely because there was no specific legal duty imposed on dnr employees to report agency investigative expenditures, but rather because the memoranda were prepared to document the investigatory costs that the dnr sought to recover as damages in a civil lawsuit. 140 Mich App 17. Consequently, the circumstances of preparation indicated the memoranda were prepared for litigation, and "[t]he inherent trustworthiness of documents prepared by a public official in carrying out his duties which justifies the public records exception does not apply to this case.” Id.

It is clear that under certain circumstances, such as when records are prepared in anticipation of litigation or where the preparer or source of information had a motivation to misrepresent, trustworthiness, the principle rationale for admissibility under MRE 803(8), is no longer present, even though a record may meet the literal requirements of the rule. See Wigmore, supra, § 1633(7), p 624.²⁶ Thus, we again take note of the circumstances under which the four exhibits in the present case were prepared, see ante, pp 126-129, and likewise conclude they were improperly admitted into evidence under MRE 803(8)(B). Under MRE 803(8)(B), trustworthiness is the cardinal justification for the admissibility of public records otherwise excluded as hearsay, and the circumstances under which the four exhibits in this case were prepared do not furnish the same high degree of reliability and accuracy that the literal requirements of MRE 803(8)(B) were intended to ensure. Rather than affecting solely the weight of the evidence, the circumstances under which these four exhibits were prepared touch upon the underlying threshold issue of admissibility.

In addition, each record, as previously noted, see ante, pp 128-129, also contains numerous statements of hearsay within hearsay. MRE 805. Consequently, we would hold that the four exhibits are inadmissible hearsay and were improperly admitted into evidence under MRE 803(8).

c

The admission of the four exhibits into evidence over plaintiff’s timely objection was clearly improper and constituted an abuse of discretion. We also agree with Judge Shepherd that the prejudice to plaintiff is obvious. "The reports, given their imprimatur as official police documents, might be viewed as more credible than the testimony of live witnesses. It is impossible to conclude the jury, faced with a quasi-official document which purports to offer an objective recitation of the 'facts,’ would not place heavy reliance on its accuracy.” 166 Mich App 31 (Shepherd, J., dissenting). When added to the fact that the exhibits create the impression that decedent came out of his home specifically intending to shoot someone even though his own son would be endangered, the error cannot be deemed harmless. Because the substantial rights of the plaintiff were adversely affected, automatic reversal is required. Swartz v Dow Chemical Co, 414 Mich 433, 444; 326 NW2d 804 (1982); Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972).

Ill

The second question presented is whether the trial court properly instructed the jury on the so-called rescue doctrine. SJI2d 13.07 provides:

A person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made.

Over plaintiff’s timely objection, the trial court read to the jury a modified version of SJI2d 13.07:

If you find, under the facts, from the evidence, that Alvin Solomon was in imminent and serious peril, a person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else, is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made.

The basis of plaintiff’s objection was that the victim need not be in actual danger in order for the rescue doctrine to apply, and that the instructions misled the jury by stating contributory negligence principles instead of comparative negligence principles.

The Court of Appeals affirmed. Although the Court concluded that the trial court had erroneously instructed the jury, the Court deemed the error harmless. The Court held that the rescue doctrine applies if the rescuer reasonably believes the victim is in actual danger. Consequently, the victim need not ever have been in actual danger in order for the doctrine to apply. The Court found the error harmless, however, because on the whole, the jury instructions adequately presented plaintiff’s theory of the case to the jury and properly instructed the jury on comparative negligence principles. Consequently, we must determine whether the Court of Appeals properly held that the trial court erroneously instructed the jury and whether the error was harmless.

Under the rescue doctrine, the tortfeasor whose negligence endangers the victim owes the victim’s rescuer a duty of reasonable care. Brugh v Bigelow, 310 Mich 74, 77, 80; 16 NW2d 668 (1944), citing Wagner v Int'l R Co, 232 NY 176; 133 NE 437 (1921); Prosser & Keeton, Torts (5th ed), § 43, pp 288-289, §44, pp 307-308. Since rescuers, as a class, are foreseeable, the tortfeasor’s duty of care owed to the rescuer is independent of that owed to the victim. Prosser & Keeton, supra, § 44, p 308.

Traditionally, the rescue doctrine has served two purposes. First, the doctrine established a causal nexus linking the tortfeasor’s negligent conduct to the rescuer’s injuries. See Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955). Consequently, the fact that the rescuer voluntarily exposed himself to an increased risk of harm was not, as a matter of law, deemed to be a superseding cause of the rescuer’s injuries that would discharge the tortfeasor’s liability. Sweetman v State Hwy Dep’t, 137 Mich App 14, 26-27; 357 NW2d 783 (1984); Restatement Torts, 2d, § 445; Prosser & Keeton, supra, § 44, pp 307-308. Second, the doctrine also provided that, when the rescue attempt itself was reasonable, the rescuer’s recovery was not otherwise absolutely barred by the affirmative defense of contributory negligence merely because the rescuer voluntarily exposed himself to an increased risk of injury in order to save a third person. Sweetman, supra, pp 26-27; 2 Restatement Torts, 2d, § 472, p 521; Prosser & Keeton, supra, § 44, pp 307-308, § 65, pp 451-453.

An injured rescuer’s recovery would still be barred, even if the rescue attempt itself was reasonable, when the rescuer did not exercise reasonable care in the manner in which he carried out the attempt. Sweetman, supra, p 27; 2 Restatement Torts, 2d, §472, comment c, p 522; SJI2d 13.07. Thus, as the Court of Appeals noted in Sweetman, the application of the rescue doctrine requires a two-step analysis. First, the trier of fact must determine whether a reasonable person under the same or similar circumstances would have acted as did the rescuer. To determine this, the trier of fact must balance the utility of the rescuer’s conduct against the magnitude of the increased risk of harm. See Moning v Alfono, 400 Mich 425, 433-434; 254 NW2d 759 (1977); Sweetman, supra, pp 26-27. If the rescue attempt itself is reasonable, then the rescuer is not deemed comparatively negligent merely for voluntarily exposing himself to an increased risk of harm in order to save another.²⁷ The second step of the analysis is to determine whether the rescuer carried out the rescue attempt in a reasonable manner. If the rescuer did not, then the rescuer’s recovery is reduced by his comparative degree of fault. Sweet-man, supra, pp 26-27.

The Court of Appeals correctly held that the rescue doctrine applies even if the victim never was in actual danger. Although previous Michigan cases held that the victim had to be in actual danger at the time of the rescue attempt,²⁸ pr if not, at least shortly before,²⁹ it is clear that the dispositive issue determining whether the rescue attempt itself is reasonable is whether the rescuer acted as a reasonable person under the same or similar circumstances. Because the inquiry as to whether the rescue attempt itself was reasonable also rests upon whether the utility of the rescue attempt outweighs the increased risk of harm the rescuer faces, the Court of Appeals correctly determined that the rescue doctrine applies even if the victim never was in actual danger. Accord Prosser & Keeton, supra, § 44, p 306, n 45 and pp 307-308. Because the trial court instructed the jury that Alvin Solomon had to be in actual danger at the time of the rescue attempt, we agree with the Court of Appeals that the instruction was erroneous. Consequently, the instruction was also misleading because it did not clearly charge the jury to undertake its inquiry from the viewpoint of a reasonable person acting under the same or similar circumstances as decedent.³⁰ See Sweetman, supra, pp 26-28.

The Court of Appeals deemed the instructional error harmless because it found that the jury instructions as a whole adequately stated plaintiff’s theory of the case and, therefore, did not constitute error requiring reversal. See Baker v Saginaw City Lines, Inc, 366 Mich 180, 189-190; 113. NW2d 912 (1962); Scalabrino v Grand Trunk W R Co, 135 Mich App 758, 766; 356 NW2d 258 (1984), lv den 422 Mich 877 (1985). The Court also reasoned that, because it had reduced plaintiff’s award by eighty percent, the jury must have been properly instructed on comparative negligence principles. We disagree and would hold the instructional error prejudicial and inconsistent with substantial justice.³¹

Under the instructions the trial court read to the jury, the jury could not properly analyze plaintiff’s theory of the case under the rescue doctrine. Plaintiff’s theory of the case was that the rescue attempt itself was reasonable and that decedent carried out the rescue attempt in a reasonable manner. In light of the fact that Alvin never was in actual danger, however, the trial court in effect told the jury that the rescue doctrine did not apply and that the rescue attempt itself was unreasonable. Consequently, the instructions precluded the jury from properly considering whether a reasonable person would have undertaken a rescue attempt under these same circumstances and in the same manner. Thus, it is no comfort to state that the jury was otherwise properly instructed on comparative negligence principles and, notwithstanding the instructional error, undertook an otherwise proper negligence analysis. The simple fact is that the jury, under these instructions, could not determine whether the rescue attempt itself was reasonable. Thus, plaintiff’s theory of the case was not adequately presented to the jury. Plaintiff suffered prejudice inconsistent with substantial justice, and, therefore, reversal is required._

CONCLUSION

As we noted in Moncrief v Detroit, 398 Mich 181; 247 NW2d 783 (1976), police reports will not usually qualify for admission into evidence under the business records exception to the hearsay rule.³² In the present case, we would hold that the four police reports were improperly admitted into evidence under MRE 803(6) because each exhibit lacked the trustworthiness that the rule requires as a condition of admissibility. Each exhibit also contains numerous statements of hearsay within hearsay, MRE 805, and is not otherwise admissible as a public record, MRE 803(8). We also conclude that plaintiff suffered substantial prejudice because of the reports’ imprimatur as "official” police records and their depiction of decedent’s conduct.

We also would hold that the jury was erroneously instructed on the rescue doctrine. Because the trial court’s instructions did not adequately present plaintiff’s theory of the case to the jury and the jury could not otherwise undertake a proper negligence analysis, we would hold the error cannot be deemed harmless.³³

The judgment of the Court of Appeals should be reversed, and the case remanded for a new trial consistent with this opinion._

Levin and Cavanagh, JJ., concurred with Archer, J.

1 The jury also found that Shuell did not commit assault and battery. In addition, the jury did not answer whether decedent’s constitutional rights had been violated.

2 The dissenting judge did not address the jury instruction issue.

3 (c) Hearsay. "Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [MRE 801(c).]

4 Hearsay is not admissible except as provided by these rules. [MRE 802.]

5 Neither party argues that the exhibits are admissible under MRE 804.

6 MRE 803(6) is identical to FRE 803(6) except that MRE 803(6) is limited to "acts, transactions, occurrences, or events,” while FRE 803(6) applies to "acts, events, conditions, opinions, or diagnoses . . . .”

7 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

8 The record reveals that, during oral argument outside the presence of the jury, plaintiff’s counsel informed the court that the officers were advised of their constitutional rights and provided counsel.

9 Plaintiff-appellant concedes before this Court that the four exhibits were "kept in the course of a regularly conducted business activity” and that it was the department’s regular practice to compile such reports. Therefore, we assume, without deciding, that these two elements of MRE 803(6) have been established.

10 Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility. The term "business” shall include business, profession, occupation and calling of every kind. [MCL 600.2146; MSA 27A.2146.]

11 In addition to requiring that the entries be regularly made at or about the time of the transaction and as a part of the routine of the business, other common restrictions were that (1) the party using the book not have had a clerk, (2) the party fie a "supplemental oath” to the justness of the account, (3) the books bear an honest appearance, (4) each transaction not exceed a certain limited value, (5) witnesses testify from their experience in dealing with the party that the books are honest, (6) the books be used only to prove open accounts for goods and services furnished the defendant (thus making them unavailable for proof of loans, and goods and services furnished under special contract or furnished to third persons on defendant’s credit), and (7) other proof be made of the actual delivery of some of the goods. [McCormick, supra, §305, p 871. See also Laughlin, Business entries and the like, 46 Iowa L R 276, 282-283 (1961).]

12 See Wigmore, supra, § 1420, p 251. "The purpose and reason of the hearsay rule is the key to the exceptions to it.”

13 28 USC 695 (currently codified as amended at 28 USC 1732). The federal business records statute is substantially identical to MCL 600.2146; MSA 27A.2146.

14 Hoffman v Palmer, 129 F2d 976 (CA 2, 1942).

15 See also Laughlin, n 11 supra, p 289 (Palmer "violates the letter” of the federal statute).

16 The Commonwealth Fund Act was essentially identical to 28 USC 695 (currently codified as amended at 28 USC 1732) and MCL 600.2146; MSA 27A.2146. See Morgan, The Law of Evidence, Some Proposals for Its Reform (New Haven: Yale University Press, 1927), p 63.

17 § 1. Definition. — The term "business” shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

§2. Business Records. — A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. [9A ULA 506 (1965).]

18 (13) Business Entries and the Like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. [9A ULA 637 (1965).]

19 Instead of prescribing as does Model Code Rule 514 that the memorandum must be made by the person having knowledge of the act, event or condition or must be transmitted by such person in the course of the business for inclusion in the memorandum, the broader policy of the Uniform Act is adopted leaving it up to the judge to determine whether or not the sources of information, method and time of preparation reflect trustworthiness. [Uniform Rules of Evidence, comment to ¶ 13, 9A ULA 646 (1965).]

20 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness. [56 FRD 183, 300-301 (1972).]

21 The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary-system — that he is not in the presence of persons acting solely in his interest. [Miranda v Arizona, n 7 supra, p 469.]

22 See n 10 for text.

23 Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. [MRE 805.]

24 MRE 803(8) is identical to FRE 803(8) except for the reference to MCL 257.624; MSA 9.2324 and the omission of FRE 803(8)(C) (evaluative reports), which was rejected as inconsistent with prior Michigan law. See Swartz v Dow Chemical Co, 414 Mich 433, 443-444; 326 NW2d 804 (1982). See also Bradbury v Ford Motor Co, 419 Mich 550, 554; 358 NW2d 550 (1984).

25 In Hewitt, the Court concluded in dicta that an accident report prepared by an officer without a duty to report did not fall within the scope of MRE 803(8)(B).

26 Although records meeting the literal requirements of the public records hearsay exception have traditionally been admitted into evidence, "a statement otherwise admissible is to be excluded where there existed for the declarant a special interest or motive to misrepresent. No doubt, in a given case, circumstances may justify the exclusion of an official statement where a strong motive to misrepresent appears to have existed . . . .” Wigmore, supra, § 1633(7), p 624. (Emphasis in original.)

27 Although in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979), we abolished the contributory negligence doctrine as an absolute bar to a negligent plaintiff’s recovery, comparative negligence principles now apply in rescue cases. Sweetman, supra, p 26.

28 See, e.g., Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972).

29 Sweetman, supra.

30 We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles.

31 MCR 2.613(A). The harmless error standard set forth in MCR 2.613(A) is applicable in all civil actions. Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985).

32 The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the "nature” of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely. [Moncrief, supra, p 189.]

33 Although the erroneous admission of the four police reports and the instructional error each are independent grounds requiring reversal because plaintiff suffered substantial prejudice, the cumulative effect of these errors also requires reversal. Haynes v Seiler, 16 Mich App 98, 103; 167 NW2d 819 (1969). See Hickey v Zezulka, 177 Mich App 606, 623; 443 NW2d 180 (1989).