An investigating police officer who lost his notes may testify at an auto-accident trial by reading from the accident report filed with the Department of Motor Vehicles, a Norfolk Circuit judge has ruled.
But the officer has to meet certain conditions prior to reading the accident report, according to the Norfolk judge, who consolidated two separate auto-accident cases in order to decide the common issue.
Debate over accident reports often centers on gaining access to the reports during pretrial discovery. But this latest “accident report” case details how a lawyer can use the report once she gets the investigating officer on the stand at trial.
The Norfolk judge said that in order to read from the report at trial, the officer must have firsthand knowledge of the matter, must show that the report is “the only written statement” recording that knowledge, must not have any “present recollection” of the investigation, and must vouch for the accuracy of the written memorandum.
Even then, the officer may read from the report, but neither party may introduce the report into evidence, the judge said.
The decision in the consolidated cases is Staton v. King (VLW 003-8-194). The opinion was written by Judge Charles E. Poston.
Officer on stand
In both instances, a police officer took the stand to describe the investigation of the respective accident scenes, according to Poston’s opinion.
In each case, “the only available means for the investigating officer to refresh his memory of the statements was the accident report that the officer filed with the Department of Motor Vehicles,” made shortly after the accident when each officer had a clear and accurate memory of the separate accidents.
“In neither case was the officer’s memory successfully refreshed after being showed the accident report on the stand,” Poston wrote.
A Virginia statute, Virginia Code Sect. 46.2-379, prohibits using accident reports as trial evidence. The statute apparently intends that an investigating officer’s memory should be refreshed by using the officer’s handwritten notes that preceded composition of the accident report, and not the report itself, according to Poston.
But problems arise when the investigating officer no longer has the personal notes created while investigating the accident. The accident report filed with DMV “may well be the sole remaining document memorializing what the officer observed, heard and concluded at the time of his investigation,” Poston wrote.
The issue then becomes whether the accident report can be used to refresh the memory of the testifying officer, and alternatively, if that fails, whether the accident report can be used as a past recollection recorded.
Refreshed or recorded
“Present recollection refreshed” and “past recollection recorded,” while often confused, are quite distinct, Poston said. Past recollection recorded pertains primarily to written documents, but lawyers may use literally anything under the sun to refresh a witness’s memory, even if the evidence is not admissible in the proceedings.
Documents used by witnesses as past recollection recorded are not automatically admissible as evidence, and Poston said that, from what little guidance there was on the subject, it appeared that past recollection recorded could be treated just as present recollection revived. “This would be the fairest course of action, as in the two cases before this Court, the respective accident reports are the plaintiff’s only way of getting specific testimony into evidence.”
It has been made clear by the Supreme Court of Virginia and the 4th U.S. Circuit Court of Appeals “that the contents of an accident report are not confidential. It would be inequitable, then, to shield this testimony from the jury simply because the defendants’ statements to the investigating officer were written on a Department of Motor Vehicles accident report and not, say, etched on a bathroom stall,” the judge wrote.
Although an officer could testify as to the contents of the accident report “just as if it were his field notes,” Poston wrote, “under no circumstances should that be revealed to the jury. The opponent of the testimony is usually entitled to enter into evidence any document a witness uses as past recollection recorded.
“However, denying the opponent the right to do so is scarcely different than preventing opposing counsel from showing the jury items used to refresh recollection,” the judge said.
Drawing on a 1963 case from the 4th Circuit and from several Virginia Supreme Court cases, Poston laid down the rules for the investigating officers’ testimony.
First, the party proffering the testimony must establish that the officer had “firsthand knowledge” of the matter to which he is to testify. Second, the party must show that “the only written statements recording” the officer’s knowledge is the accident report, prepared at or near the time of the investigations.
The proponent of the evidence also must show that the officer lacks a “present recollection” of the investigation. Finally, the officer must vouch for the accuracy of the written memorandum.
But the Norfolk judge cautioned that “[n]either the officers nor counsel may identify the writing or the accident report nor may either party seek to admit the report into evidence.”