by NITA guest bloggers Michaela Vrazdova and Michael J. Dale
In trial practice, the question often arises as to whether police accident reports are admissible into evidence under the business record exception to the hearsay rule, and if they are not, why not. It turns out that there is no single answer, as states differ. Therefore, this article analyzes the law regarding this issue in three representative states—New York, Florida, and Illinois – in the context of civil litigation and demonstrates differences in these states.[i]
New York Law
In New York, accident reports can be admissible into evidence under the business record exception to the hearsay rule in civil cases when certain requirements are met. Under § 4518 of New York Civil Practice Law and Rules, a police accident report can be admissible if “it was made in the regular course of any business,” “it was the regular course of such business to make it,” and it was made “at the time of the act, transaction, occurrence or event, or reasonable time thereafter.”[ii]
Case law in New York qualifiedly supports police report admissibility. In Johnson v. Lutz, the New York Court of Appeals ”read into the then existing statute a requirement, not expressly found in it, that, to be admissible, the person making the police report be the witness or that the person supplying the information to the entrant be under a business duty to do so.”[iii] Admissibility in New York is based upon the following factors.
An accident report is admissible “so long as the report is made based upon the officer’s personal observations and while carrying out police duties.”[iv]
For example, even though she did not witness the accident itself a police officer may state in the accident report that she smelled alcohol and that the person in question seemed to be intoxicated because such statements were based on the officer’s own observations and were not hearsay.[v]
Moreover, a diagram of an accident scene in an accident report may be admitted if the police officer personally observed the location upon his arrival on the scene of the accident and the diagram had been made immediately after the accident and before there had been any movement of the vehicles.[vi] Thus, when a vehicle involved in an accident is moved prior to the police officer’s arrival, such diagram is held to be inadmissible.[vii]
When there is a dispute between parties involved in a car accident as to where exactly the accident occurred and the police officer stated in the accident report certain information about the location of the accident, a New York appellate court excluded such information on the basis that there was insufficient evidence that the “information was derived from the personal observations of the responding police officer, who did not witness the subject accident.”[viii]
Statements of a witness from accident reports are admissible “where it is demonstrated that the informant has personal knowledge of the act, event or condition and he is under a business duty to report it to the entrant.”[ix] This is a basic business record exception provision.
The witness’s statement in an accident record may also be admitted into evidence when the statement falls under another hearsay exception.[x] The party who wants to admit the witness’s statements into evidence has to prove that the statement falls under another hearsay exception and that such an exception applies in a particular case.[xi]
For example, in one case, a defendant’s employee who was involved in an accident testified during his deposition that he observed the plaintiff driving next to him, when he felt an impact to his car and saw the plaintiff talking on her phone.[xii] The plaintiff was seeking to introduce a statement of the defendant’s employee from the accident report, in which the witness stated that he did not observe plaintiff’s car prior to the accident.[xiii] The plaintiff was arguing that the statement should be admitted into evidence because it fell under the party admission exception to hearsay under New York’s rules of evidence, as it inculpated the defendant, and that it also fell under the prior inconsistent statement exception to hearsay.[xiv]
Similarly, the statement of the defendant that “he had fallen asleep while driving and that his vehicle had crossed over a double yellow line into oncoming traffic and struck a telephone pole on the opposite side of the road” was admissible, as the statement fell under the admission of a party opponent exception to hearsay.[xv]
A party in New York may also seek to introduce statements found in the police accident report under the spontaneous declaration and declaration against interest exceptions to hearsay.[xvi]
What if the identity of the source is unknown?
To determine whether some hearsay exception may apply in New York, one must identity the source of information, and thus the problem arises when the source of the information stated in the accident report is unknown.
In one case, the plaintiff was claiming that a traffic light was green in his favor and the defendant was saying that the light was green in her favor.[xvii] The police accident report contained a statement that the light was green in the defendant’s favor.[xviii] However, it did not state who the source of this information was, and the police officer did not witness the accident.[xix] The New York court ruled that this information “may have been supplied by defendant, by plaintiff, by an unidentified eyewitness, or by some combination of these persons.”[xx] Thus, such statement from the accident report was not admissible, as it could not be determined whether some hearsay exception could apply.[xxi]
In another case, the plaintiff claimed that defendant’s car rear-ended his car, whereas the defendant claimed that plaintiff backed into her car.[xxii] The police accident report contained a statement from an unknown source that the “defendant rear-ended the plaintiff.”[xxiii] Because the court could not determine who the source of this statement was and whether some exception to hearsay could apply, the court ruled that such report should not have been admitted into evidence.[xxiv]
Lastly, for the accident report to be admitted into evidence in New York, the report must “bear a certification or authentication by the head of . . . department.”[xxv]
To conclude, the police accident reports are admissible in evidence in New York when certain requirements described above are met.
The law in Florida differs dramatically from the law in New York, as there is an express statutory provision in Florida prohibiting the admission of crash reports into evidence in any case—civil or criminal.
Section 316.066(4) states that
[e]xcept as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.[xxvi]
Thus, the police report remains inadmissible in a civil case. In a criminal case, however, certain non-inculpatory statements of a defendant may be admissible. In addition, one Florida court has held that crash reports are also not admissible in administrative proceedings.[xxvii]
The rationale for adopting § 316.066(4) Florida Statutes and excluding the crash reports in civil cases was “to encourage true and uninhibited reports of accidents, the ultimate goal being to make highways safer.”[xxviii]
The rationale for application of this section to criminal cases was “to ensure that accident information could be compelled without Fifth Amendment violations.”[xxix] That means a person involved in the crash can make statements to a police officer and “that the state does not violate an individual’s constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident.”[xxx]
A question that arises next is whether personal observations of the police officer who comes on the scene of an accident after the fact are admissible.
In State v. Edwards, Florida’s Fifth District Court of Appeal ruled that a police officer’s observations (e.g., the officer smelled alcohol from defendant’s breath, defendant’s speech was slurred, defendant had problem with balance, defendant’s eyes were bloodshot) were admissible, as they were observations of the officer and not statements under § 316.066, and also that the results of sobriety tests are admissible into evidence, as such results are not communications protected by § 316.066(4) of the Florida statutes.[xxxi]
Similarly, the court ruled in State v. Cino that only statements are protected under § 316.066(4) and thus observation of person’s “physical appearance, general demeanor, slurred speech or breath scent” are not protected by this section and, in addition, do not violate the defendant’s right against self-incrimination.[xxxi]
Furthermore, the Florida Supreme Court has ruled that observations of a police officer on the accident scene―such as the location of the vehicles involved in an accident when the police officer arrived, whether there were any skid marks, and the extent of how much were the cars damaged―are all admissible in evidence because they are personal observations of the officer and do not fall under § 316.066.[xxxii] As the court said, “[a]ll this information ordinarily appears on the accident report prepared by the investigating police officer and it is clearly admissible at trial.”[xxxiii]
Finally, it is possible that a party involved in a crash waives this privilege when the party “opens the door by introducing inadmissible information contained in the accident report.”[xxxiv]
Rule 236 of Illinois Supreme Court Rules deals with admission of business records into evidence and enumerates certain requirements a record has to meet to be admitted into evidence as a business record. With regard to police accident reports, subsection (b) of Rule 236 states that “[a]lthough police accident reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.”[xxxv]
It follows that police reports are generally not admissible in either civil or criminal trials.[xxxvi] Interestingly, in certain cases a “mere attempt to introduce such an exhibit may be considered reversible error.”[xxxvii] Thus, in one civil case, when a defendant’s attorney repeatedly asked the plaintiff “in the presence of the jury to introduce the police report into evidence,” the Illinois appellate court ruled that such conduct of the defendant’s attorney was prejudicial to the plaintiff.[xxxviii] However, “where a proper foundation has been laid, certain portions of a police report have been admitted into evidence as past recollection recorded.”[xxxix] Moreover, in Illinois certain portions of the police accident report may be admissible for the purpose of impeachment.[xl]
Every state has different legislation when it comes to the question of admissibility of police accident reports under the business records exception to hearsay.[xli] New York has a statute that allows accident reports to be admissible when the report was made in the regular course of business, it was the regular business to make such record, it was made at the time of the act or a reasonable time thereafter, and it was based upon the police officer’s own observations and while carrying out her official duties. Moreover, statements of other persons (not a police officer) in an accident report may be admitted into evidence when the person had a business duty to report to police officer or when the statement falls under another hearsay exception (e.g., admission of party, spontaneous declaration).
On the other hand, Florida has a statute that states that a crash report made by a person involved in a crash or a statement of such person to a police officer is not admissible into evidence in any trial—civil or criminal. The rationale for the rule in Florida is to encourage truthfulness of people when making statements to police officer after the incident and in criminal cases to protect the defendant’s right against self-incrimination.
Illinois Supreme Court Rule 236 discusses admissibility of business record explicitly, stating in subsection (b) that a police report may not be admissible under the business record exception to hearsay.
In conclusion, the best practice regarding the admissibility of police report under the business record exception to hearsay is to check the appropriate state statute and case law in the appropriate jurisdiction. As this discussion shows, states can differ significantly about the admissibility of police accident reports.
Michaela Vrazdova is a graduate in law from Charles University in Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She can be reached at firstname.lastname@example.org.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at email@example.com. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.
[i]. As this research is limited to three states, counsel must check the law in their own jurisdiction.
[ii]. N.Y.C.P.L.R. 4518(a) (McKinney 2017).
[iii]. Toll v. State, 299 N.Y.S.2d 589, 591 (N.Y. App. Div. 1969) (discussing Johnson v. Lutz, 170 N.E. 517 (1930)).
[iv]. Memenza v. Cole, 16 N.Y.S.3d 287, 289 (N.Y. App. Div. 2015).
[v]. Bhowmilk v. Santana, 33 N.Y.S.3d 51, 51–52 (N.Y. App. Div. 2016).
[vi]. Mooney v. Osowiecky, 651 N.Y.S.2d 713, 714 (N.Y. App. Div. 1997). See also Campbell v. Manhattan and Bronx Surface Transit Operating Authority, 438 N.Y.S.2d 87, 88–89 (N.Y. App. Div. 1981).
[vii]. Mooney, 651 N.Y.S.2d at 714.
[viii]. Shehab v. Powers, 54 N.Y.S.3d 104, 106 (N.Y. App. Div. 2017).
[ix]. Matter of Leon RR, 397 N.E.2d 374, 378 (N.Y. 1979).
[x]. Toll, 299 N.Y.S.2d at 592.
[xi]. Tyrrell v. Wal-Mart Stores, Inc., 97 N.Y.2d 650, 651 (N.Y. 2001).
[xii]. Brown v. URS Midwest, Inc., 18 N.Y.S.3d 704, 705–06 (N.Y. App. Div. 2015).
[xiii]. Brown, 132 A.D.3d at 927.
[xv]. Scott v. Kass, 851 N.Y.S.2d 649, 651 (N.Y. App. Div. 2008).
[xvi]. Cover v. Cohen, 461 N.E.2d 864, 870 (N.Y. 1984).
[xvii]. Gagliano v. Vaccaro, 467 N.Y.S.2d 396, 397 (N.Y. App. Div. 1983).
[xxi]. See id.
[xxii]. Noakes v. Rosa, 862 N.Y.S.2d 573, 574 (2d Dep’t 2008).
[xxv]. N.Y. C.P.L.R. 4518(a) (McKinney 2017).
[xxvi]. Fla. Stat. § 316.066(4) (2014).
[xvii]. Nelson v. Dep’t of Highway Safety & Motor Vehicles, 757 So.2d 1264, 1265 (Fla. Dist. Ct. App. 2000).
[xxviii]. Vedner v. State, 849 So.2d 1207, 1211 (Fla. Dist. Ct. App. 2003).
[xxix]. State v. Norstorm, 613 So.2d 437, 440 (Fla. 1993).
[xxx]. State v. Cino, 931 So.2d 164, 168 (Fla. Dist. Ct. App. 2006).
[xxxi]. State v. Edwards, 463 So.2d 551, 554 (Fla. 5th Dist. Ct. App. 1985).
[xxxii]. Cino, 931 So.2d at 167.
[xxxiii]. Brackin v. Boles, 452 So.2d 540, 544 (Fla. 1984).
[xxxv]. Salama v. McGregor, 656 So.2d 215, 216 (Fla. Dist. Ct. App. 1995).
[xxxvi]. Ill. S. Ct. R. 236(b) (eff. Aug. 1, 1992).
[xxxvii]. People v. Richardson, 362 N.E.2d 1104, 1106 (Ill. App. Ct. 1977).
[xxxviii]. Johnson v. Plodzien, 175 N.E.2d 560, 563 (Ill. App. Ct. 1961).
[xlix]. Smith v. Johnson, 120 N.E.2d 58, 60 (Ill. App. Ct. 1954).
[xl]. Wilkinson v. Mullen, 327 N.E.2d 433, 435 (Ill. Ct. App. 1975).
[xli]. Hall v. Baum Corp., 299 N.E.2d 156, 160 (Ill. Ct. App. 1973).
[xlii]. See George J. Blum, Admissibility in State Court Proceeding of Police Reports as Business Records, 111 A.L.R. 5th 1 (originally published 2003).
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