ACCIDENT REPORTS

1. Summary

Accident reports raise several distinct evidentiary issues. Many types of accident reports are rendered inadmissible by statute, due to concerns that their official nature may lead juries to attach undue weight to them (§ 1, infra).{footnote}Cherry v. D.S. Nash Construction Company, 252 Va. 241 (1996).{/footnote} Even if a report is not rendered inadmissible by statute, it generally constitutes hearsay. The most commonly invoked exception is that for public records and reports (§ 2(a), infra), but creative counsel have sometimes sought to use others as well. (§§ 2(b)-(???), infra). If a report falls within a statutory privilege, however, it is of no consequence that it happens to fall within a hearsay exception—the report must be excluded.{footnote}Huber v. U.S., 838 F.2d 398, 403 (9th Cir. 1988).
Blickle v. Bell-Thomson, 1996 Tenn. App. LEXIS 352.{/footnote}

1. Exclusion by Specific Statutes

1(a). Police Accident Reports

Accident reports by law enforcement officers are rendered inadmissible by statute in some states.{footnote}E.g., Fla. Stat. § 316.066(4)(1985) ("[n]o such report shall be used as
evidence in any trial, civil or criminal, arising out of an accident."); Tenn. Code Ann. § 55-10-114(b); Tex. Rev. Stat. art. 6701d § 47 (Vernon 1977); Va. Code § 46.2-379 ("all [motor vehicle] accident reports made by investigating officers . . . shall not be used as evidence in any trial, civil or criminal, arising out of any accident."); State v. Halko, 193 A.2d 817 (Del. Super. 1963); Delfose v. Bresnehan, 305 Mich. 621, 9 N.W.2d 866 (1943); Haugen v. Dick Thayer Motor Co., 253 Minn. 199, 91 N.W.2d 585 (1958); Styskal v. Brickey, 158 Neb. 208, 222, 62 N.W.2d 854 (1954); Smith v. Wilkins, 403 P.2d 485 (Okla. 1965); Blickle v. Bell-Thomson, 1996 Tenn. App. LEXIS 352; Roberts v. State, 571 S.W.2d 11 (Tex. Crim. App. 1978); Willis v. Commonwealth, 190 Va. 294, 56 S.E.2d 222 (1949).
Contra Iowa Code. § 321.271; Stephen v. State, 898 S.W.2d 435, 438 (Ark. 1995) (no statutory privilege in Arkasas); Shannon v. Hansen, 469 N.W.2d 412, 415 (Iowa 1991); Duncan v. Strating, 357 Mich. 654, 99 N.W.2d 559 (1959). {/footnote} This exclusionary rule has been extended to notes and memoranda made in connection with the prepraration of a report.{footnote}Lowen v. Pates, 219 Minn. 566, 18 N.W.2d 455 (1945).
Contra Cherry v. D.S. Nash Construction Company, 252 Va. 241 (1996) (statement contained in officer’s field notes admissible even though later incroporated into accident report).{/footnote} This rule does not apply where the police officer was not required by law to complete an accident report.{footnote} Dwelly v. McReynolds, 6 Cal. 2d 128, 56 P.2d 1232 (1936). {/footnote} It has also been held that a driver’s admission to a police officer which is set forth in the officer’s accident report is admissible despite any statutory privilege.{footnote}Creary v. State, 663 P.2d 226 (Alaska App. 1983); Stephen v. State, 898 S.W.2d 435, 439 (Ark. 1995); People v. Misner, 134 Cal. App. 2d 377, 285 P.2d 938 (1955); Combs v. State, 436 So. 2d 93 (Fla. 1983); State v. Riley, 617 So.2d 340 (Fla. App. 1993); Perez v. State, 630 So. 2d 1231 (Fla. App. 1994); Ritter v. Nieman, 329 Ill. App. 163, 67 N.E.2d 417 (1946); State v. Rullestad, 143 N.W.2d 278 (Iowa 1966); State v. Flack, 251 Iowa 529, 101 N.W.2d 535 (1960); Malmay v. Sentry Ins. Co., 550 So 2d 366 (La. App. 1989); State v. Libby, 153 Me. 1, 133 A.2d 877 (1957); Heiman v. Kolle, 317 Mich. 548, 27 N.W.2d 92 (1947); Rockwood v. Pierce, 235 Minn. 519, 51 N.W.2d 670 (1952); Spradling v. State, 628 S.W.2d 123 (Tex. App. 1981); Airline Motor Coaches, Inc. v. Howell, 195 S.W.2d 713 (Tex. Civ. App. 1946).
Contra St. Germain v. Carpenter, 84 So.2d 556 (Fla. 1956); Dinowitz v. Weinrub, 493 So. 2d 29 (Fla. App. 1986); Meyer v. Schumacher, 160 N.W.2d 433 (Iowa 1968); Germiquet v Hubbard, 41 N.W.2d 531 (Mich. 1950); Trafamczak v. Anys, 31 N.W.2d 832 (Mich. 1948); People v. Gilbert, 154 N.W.2d 800 (Mich. App. 1967); Henry v. Condit, 53 P.2d 722 (Or. 1936).
See generally, Randy R. Koenders, Annotation, Admissibility of Police Officer’s Testimony at State Trial Relating to Motorist’s Admissions Made in Or for Automobile Accident Report Required by Law, 46 A.L.R.4th 291 (1996).{/footnote}

Results of blood tests conducted in connection with an accident report have been held inadmissible.{footnote}Cooper v. State, 183 So. 2d 269 (Fla. App. 1966); Hamilton v. Becker, 249 Iowa 516, 86 N.W.2d 142 (1957).{/footnote} The reporting officer, of course, can testify as to any physical observations made at the scene of the accident.{footnote}State v. Libby, 153 Me. 1, 133 A.2d 877 (1957); Delfose v. Bresnehan, 305 Mich. 621, 9 N.W.2d 866 (1943); Garey v. Michelson, 227 Minn. 468, 35 N.W.2d 750 (1949); Styskal v. Brickey, 158 Neb. 208, 222, 62 N.W.2d 854 (1954).{/footnote} However, it has been held that statements contained in accident reports may be used for impeachment despite an exclusionary statute, so long as the report itself is not admitted and no reference is made to the existence of a report.{footnote}Krizak v. W.C. Brooks & Sons, Inc. 320 F.2d 37 (4th Cir. 1963) (Va. law.).
Contra Ippolito v. Brener, 89 So.2d 650 (Fla. 1956).{/footnote}

Police accident scene diagrams may be admitted into evidence if they are based on the officer’s personal observations{footnote}Contra Galbraith v. Fleming, 427 S.E.2d 187, 188 (Va. 1993) (error even though jury not told diagram was part of accident report). {/footnote} as long as they have been made immediately after the accident and prior to the movement of the involved vehicles. [are these privilege cases?]{footnote}Mooney v. Osowiecky, 651 N.Y.S.2d 713 (App. Div. 1997) (diagram held inadmissible where vehicle had been moved since accident).{/footnote}

1(b). Motor Carriers’ Reports

Under federal law, accident reports by motor carriers to federal regulators are protected from disclosure.{footnote}Interstate Commerce Act § 220(f), 49 U.S.C.A. § 320:
(f) Report of accident as evidence in damage suit.
No report by any motor carrier of any accident arising in the course of the operations of such carrier, made pursuant to any requirement of the [Interstate Commerce] Commission, and no report by the Commission of any investigation of any such accident, shall be admitted as evidence, or used for any other purpose, in any suit or action for damages growing out of any matter mention in such report or investigation.
Blankenship v. General Motors Corp., 428 F.2d 1006 (6th Cir. 1970) (privilege may be asserted by anyone, not just carrier); La Chance v. Service Trucking Co., 215 F. Supp 159 (D.C. Md. 1963); Irvine v. Safeway Trails, Inc., 10 F.R.D. 586 (D.C. Pa. 1950) (reports privileged from discovery).
Craddock v. Queen City Coach Co., 141 S.E.2d 798 (N.C. 1965) (statement by driver to carrier’s counsel for purposes of preparing report held privileged).{/footnote} One commentator has pointed out that under current regulations, these reports, formerly filed with the ICC, are now to be filed with the Regional Federal Highway Administrator, Bureau of Motor Carrier Safety, Federal Highway Administration, Department of Transportation.{footnote}See 49 C.F.R. §§ 394.4, 394.5 and Walter W. Jones, Jr., Annotation, Construction and Application of § 220(f) of Interstate Commerce Act (49 USCS § 320(f)) Prohibiting Admission in Evidence, or Use for Other Purposes, of Accident Report Made by Motor Carrier Pursuant to ICC Requirement, or of Accident Investigation Report by ICC, in Damage Suit Growing Out of Matter in Such Reports, 12 A.L.R. Fed. 941{/footnote}

1(c). Motorist’s Report and Statements

Similarly, statutes which require the filing by motorists of vehicle accident reports may grant a privilege on the part of one who filed the report to prevent disclosure.{footnote}Uniform Act Regulating Traffic On Highways § 16 (1930), 11 U.L.A. 18 (1938); Ark. Code Ann. § 27-53-208(B)(1); Cal. Veh. Code §§ 20012, 20014; Check Cal. Evid. Code § 1042; Fla. Stat. § 316.066(4); Ill. Rev. Stat. Ch. 95 1/2, & 11-412; Iowa Code § 321.271; Va. Code § 46.1-408 (1950).
Check Sprader v. Mueller, 269 Minn. 25, 130 N.W.2d 147 (1964).{/footnote} In this context, the word “report” has been read broadly by some courts, to include oral communications to an investigating officer.{footnote}State v. Marshall, 1996 Fla. App. LEXIS 8384.
But see State v. Norstom, 613 So. 2d 437, 440 (Fla. 1993) (privilege not applicable where driver given Miranda warnings and not told that he had to respond to questions). {/footnote} A party’s testimony at an administrative hearing has been construed as a "report" under one such statute.{footnote}Rogers v. Philadelphia Transp. Co., 13 N. & C. 2d 165 (Pa. C.P. 1957).{/footnote}

1(d). Airplane Accidents

By federal statute, accident reports by the National Transportation Safety Board are inadmissible in any suit for damages.{footnote} 49 U.S.C. § 1441(e); Israel v. United States, 247 F.2d 426 (2d Cir. 1957); Jack v. Trans World Airlines, Inc., 854 F. Supp. 654 (N.D. Cal. 1994); In re Air Crash Disaster at Sioux City, Owa on July 19, 1989, 780 F. Supp. 1207 (N.D. Ill. 1991).
Check Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo. App. 1965)(report not excluded). {/footnote} The statute has been read narrowly, so as to exclude the contents of reports evidencing government agency opinions or conclusions,{footnote}Curry v. Chevron, USA, 779 F.2d 272 (5th Cir. 1985); Travelers Ins. Co. v. Riggs, 671 F.2d 810 (4th Cir. 1982); Budden v. United States, 748 F. Supp. 1374, vac’d on other grounds 963 F.2d 188 (D.C. Neb. 1990); In re Air Crash Disaster, 720 F. Supp. 1493 (D. Colo. 1989); Fidelity & Casualty Co. of New York v. Frank, 227 F. Supp. 948 (D.C. Conn. 1964); Berguido v. Eastern Air Lines, Inc., 35 F.R.D. 200 (D.C. Pa. 1964).
Sleezer v. Lang, 102 N.W.2d 435, 170 Neb. 239 (1960).
But see Beech Aircraft Corp. v. Harvey, 558 P.2d 879 (Alaska 1976)(opinions admissible except those going to ultimate issue of causation).{/footnote} but not those which contain only observations,{footnote}Lobel v. American Airlines, 192 F.2d 217, 220 (2d Cir. 1951), cert. den. 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703; Universal Airline v. Eastern Airline, 188 F.2d 993, 1000 (D. C. Cir. ___).{/footnote} underlying data,{footnote}American Airlines v. United States, 418 F.2d 180 (5th Cir. 1969)(graph of plane altitute and explanatory document not inadmissible by virtue of having been included in NTSB report).
Check Berguido v. Eastern Air Lines, Inc., 317 F.2d 628, cert. den. 375 U.S. 895, 84 S.Ct. 170, 11 L.Ed.2d 124 (1963).{/footnote} statements of witnesses,{footnote}Ratner v. Arrington, 111 So. 2d 82 (Fla. App. 1959); Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo. App. 1965){/footnote} or other factual material.{footnote}Murphy v. Colorado Aviation, Inc., 41 Colo. App. 237, 588 P.2d 877 (1978)Todd v, Weikle, 36 Md. App. 663, 376 A.2d 104 (1977).{/footnote} This statute also does not bar the use of testimony before the NTSB.{footnote}Ritts v. American Overseas Airlines, 97 F. Supp. 457 (D.C. N.Y. 1947).{/footnote} It has been held that a state courts are bound by the federal courts’ interpretation of the statute.{footnote}Beech Aircraft Corp. v. Harvey, 558 P.2d 879 (Alaska 1976).{/footnote}

1(e). Coast Guard Accident Investigations

Coast Guard regulations provide:

The investigation of marine casualties and accidents and determinations made are for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility.{footnote} 46 C.F.R. § 4.07-1(b).{/footnote}

This regulation has been interpreted to render the conclusions and opinions contained in Coast Guard accident reports inadmissible.{footnote}Huber v. U.S., 838 F.2d 398 (9th Cir. 1988) (holding only factual findngs in report admissible).
Accord In re Cleveland Tankers, Inc., 67 F.3d 1200, 1208 (6th Cir. 1995).
But see Fox v. U.S., 934 F. Supp. 1133 (N.D.Cal. 1996) (holding Coast Guard report admissible if found to be trustworthy, noting that Huber v. U.S., supra, was decided before Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), discussed in § 2(a), infra).
Contra In re Complaint of Nautilus Motor Tanker Co., 862 F. Supp. 1251, 1256 (D.N.J. 1994). (rejected the rationale of Huber where the Coast Guard’s interests were not at risk in the proceeding).{/footnote}

1(f). Effect on Actions Brought by Government

It has been held that where a governmental body is bringing an action and claims a statutory privilege as to an accident report which is determined to be relevant, a finding of fact adverse to the government is required as to the issues to which the report is relevant.{footnote} People v. Ansbro, 153 Cal. App. 3d 273, 200 Cal. Rptr. 210 (1984).{/footnote}

2. As Hearsay

Accident reports generally constitute hearsay.{footnote}Hampton v. Bruno’s, Inc., 646 So.2d 597, 599 (Ala. 1994); Cadieux v. D.B. Interiors, Inc., 214 A.2d 323, 624 N.Y.S.2d 582 (1995) (offered to prove time of accident); Holland v Zelnick, A2d 885 (Pa. Super. 1984); Williamson v.Springfield, 465 N.E.2d 1035, 1039 (Ill. App. 1984).{/footnote} Often they contain multiple levels of hearsay which may or may not render the report inadmissible.

2(a). The Public Records Exception

2(a)(i). Courts Applying FRE 803(8) or Its State Counterparts

Police accident reports have been held admissible under the federal hearsay exception for public records and its state couterparts.{footnote}E.g, Simmons v. Chicago and Northwestern Transp. Co., 993 F.2d 1326, 1327-28 (8th Cir. 1993) (court found that investigation timely, state trooper was experienced and skilled officer, no indications of bias).
State v. Williams, 932 S.W.2d 546, 553 (Tex. App. 1995).{/footnote} FRE 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 . . . (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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.{footnote}FRE 803(8) (emphasis supplied).{/footnote}

See PUBLIC RECORDS AND REPORTS. In keeping with the emphasized language above, accident reports have been held inadmissible in a criminal case under section (B) of this Rule.{footnote}State v. Garvey, 283 N.W.2d 153 (N.D. 1979).{/footnote}

In Beech Aircraft Corp. v. Rainey,{footnote}488 U.S. 153 (1988).{/footnote} the United States Supreme Court applied FRE 803(8)(C) to a Coast Guard accident report and held that conclusions and opinions in the report admissible under this exception so long as two conditions are satisfied:

Portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.{footnote}Id. at 170 (emphasis supplied).
See also Lubanski v. Coleco Industries, Inc., 929 F.2d 42, 45-46 (1st Cir. 1991) (accident report containing trooper’s conclusions presumptively admissible).{/footnote}

This rule does not allow into evidence hearsay statements of witness included in a report.{footnote}State v. York, 1996 Ohio App. Lexis 4540; Kratz v. Exxon Corp., 890 S.W.2d 899, 905 (Tex. Ct. App. 1994) (holding that written statements of two eyewitnesses within a police accident report did not qualify under the Texas public records hearsay exception because they "did not constitute factual findings resulting from an investigation made pursuant to authority granted by law").
But see Baker v. Elcona Homes Corp., 588 F.2d 551, 556 (6th Cir. 1978), cert. denied, 441 U.S. 933 (1979) (police officer’s finding as to color of traffic light at time of accident admissible even though officer did not witness accident).{/footnote}

2(a)(ii). Other State Public Records Exceptions

State courts not adopting the approach of FRE 803(8) have generally held accident reports admissible under the state’s public records exception,{footnote}State v. Stone, 452 P.2d 51 (Ariz. 1969); Timsah v. General Motors Corp., 591 P2d 154 (Kan. 1979) (diagram of accident scene).
Contra Carlton v. California DMV, 203 Cal. App. 3d 1428 (1988) (lack of reliability, competency and trustworthiness in the preparation of these reports …precludes their admissibility in court under the business or official records exceptions to the hearsay rule”).
See generally Annot., Admissibility In State Court Proceedings Of Police Reports Under Official Record Exception To Hearsay Rule, 31 A.L.R.4th 913{/footnote} but most have limited the application of the excpetion to reports which were required by statute.{footnote}Welch v. Medlock, 286 P.2d 756 (Ariz. 1955) (fatality report from police officer to coroner not admissible under this exception because written report not required by law); Hewitt v. Grand Trunk W. R. Co., 333 N.W.2d 264 (Mich. App. 1983) (report of railroad accident inadmissible because not required).
See also Bean v. Gorby, 292 P.2d 199 (Ariz. 1956) (accident report required to be filed with state highway department inadmissible because kept by officer and never filed with department).{/footnote} Courts have generally admitted officers’ personal observations as recorded in accident reports, {footnote}Rodriguez v. Williams, 489 P.2d 268 (Ariz. 1971); Fisk v. Department of Motor Vehicles, 127 Cal. App. 3d 72, 179 Cal. Rptr. 379 (1981); May v. Missouri K. T. R. Co., 583 S.W.2d 694 (Tex. Civ. App. 1979); Wilder v. Classified Risk Ins. Co., 177 N.W.2d 109 (Wis. 1970).{/footnote} but not opinions or conclusions.{footnote}Steed v. Cuevas, 540 P.2d 166 (Ariz. App. 1975); Orth v. Bauer, 429 P.2d 279 (Colo. 1967); Timsah v. General Motors Corp., 591 P2d 154 (Kan. 1979) (dicta); Southern County Mut. Ins. Co. v. Bryant, 385 So. 2d 1286 (La. App. 1980); Kelly v. O’Neil, 296 N.E.2d 223 (Mass. App. 1973); Derrick v. Blazers, 93 N.W.2d 909 (Mich. 1959); Frias v. Valle, 698 P.2d 875 (Nev. 1985); Szymanski v. Szymanski, 651 N.Y.S.2d 826 (1996); Van Scooter v. 450 Trabold Road, Inc., 616 N.Y.S.2d 129, 130 (1994) (officer erroneously allowed to testify that his report described cause as “inattention”); Kaye v. State Dept. of Licensing, 659 P.2d 548 (Wash. App. 1983).{/footnote} Reports have been held inadmissible, moreover, where they merely recited a witness’s statement to the reporting officer, rather than the officer’s own observations.{footnote}Schnabel v. Waters, 549 P.2d 795, 800 (Colo. App. 1976); Kelly v O’Neil, 296 N.E.2d 223 (Mass. App. 1973); Frias v. Valle, 698 P.2d 875 (Nev. 1985).
See also Timsah v. General Motors Corp., 591 P2d 154 (Kan. 1979) (dicta to same effect){/footnote}

2(c). Business Records Exception

2(c)(1). Police Accident Reports

Police accident reports have generally been held not admissible under the hearsay exception for business records.{footnote}Ill. Sup. Ct. R. 236(b); Hampton v. Bruno’s, Inc., 646 So.2d 597, 599 (Ala. 1994) (no foundation laid); Carlton v. California DMV, 203 Cal. App. 3d 1428 (1988) (lack of reliability, competency and trustworthiness in the preparation of these reports …precludes their admissibility in court under the business or official records exceptions to the hearsay rule”); Mooney v. Osowiecky, 651 N.Y.S.2d 713 (App. Div. 1997) (reports contain information from persons not acting under any business duty); Turner v. Spaide, 108 App. Div. 2d 1025, 485 N.Y.S.2d 593 (1985) (for report to be admissible as business record, officer must be eyewitness or receive information from one under a business duty); Auer v. Bienstock, 104 App. Div. 2d 350, 478 N.Y.S.2d 681 (1984).
But see State Farm Mut. Auto. Ins. Co. v. Bermudez, 111 App. Div. 2d 858, 490 N.Y.S.2d 595 (1985) (report containing driver’s account of accident held admissible as business record).
Contra Schear v. Motel Management Corp., 487 A.2d 1240 (Md. App. 1985) (accident reports held admissible under business records exception).{/footnote}

2(c)(2). Private Internal Accident Reports

The United States Supreme Court addressed the admissibility of internal accident reports in Palmer v. Hoffman.{footnote}318 U.S. 109 (1943). {/footnote} Palmer involved a railroad grade crossing accident in which the plaintiff’s car was struck by a train. Afterwards, the engineer made a statement to an assistant superintendent of the railroad, but died prior to the trial. The defendants offered in evidence at trial the statement made by the deceased engineer. The trial
court excluded the statement. The Second Circuit Court of Appealsheld that the statement was inadmissible, reasoning that such statements are inherently unreliable,{footnote}Hoffman v. Palmer, 129 F.2d 976 (2d Cir. 1942).{/footnote} and the United States Supreme Court affirmed, construing the Federal business records exception then codified at 28 U.S.C. § 695. The Court held that the statement was not made "in the regular course" of business within the meaning of the Act, stating:

It is not a record made for the systematic conduct of the business as a business. An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls. The conduct of a business commonly entails the payment of tort claims incurred by the negligence of its employees. But the fact that a company makes a business out of recording its employees’ versions of their accidents does not put those statements in the class of records made ‘in the regular course’ of the business within the meaning of the Act."{footnote}318 U.S. at 113-14.{/footnote}

More recently, company accident reports have been held not to be admissible under the business records exception on the grounds that each participant in the making of the record must be acting in the normal course of business, and it was not part of the injured employee’s normal duties to provide information for accident reports.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 279 (5th Cir. 1991), citing McCormick on Evidence, § 308 at 876-77 and n. 25 (distinguishing between accident report forms and records kept in the regular course of business).{/footnote}

2(d). Present Sense Impression

An accident report prepared two days after the incident at issue has been held not to be admissible under the “present sense impression” exception.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 280 (5th Cir. 1991).{/footnote}

2(e). Recorded Recollection

Accident reports have been held not admissible as recorded recollections.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 280 (5th Cir. 1991) (preparer of report never had personal knowledge of facts); Blickle v. Bell-Thomson, 1996 Tenn. App. LEXIS 352 (applying Tenn. R. Evid. 803(5); by specific statute the report was declared inadmissible).{/footnote}

2(a). As Admissions

A police officer’s accident report has been held admissible as an agent’s admission in a civil case broughht against the county with which he was employed.{footnote}Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188 (Fla. App. 1991) (applying Fla. Stat. § 90.803(18)(d)).
But see Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991) (accident report held not admissible as adoptive admission where supervisors were recounting, but not adopting, employees’ assertions as to cause of accident).{/footnote}
See also ADMISSIONS–Adoptive Admissions.

2(d). The Residual Exception

It has been held to not be an abuse of discretion to exclude accident reports offered under the residual exception to the hearsay rule where they did not provide circumstantial guarantees of trustwrothiness.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991).{/footnote}

3. Use to Refresh Recollection

It has been held proper to allow a witness to refresh his recollection by referring to his own accident report,{footnote}Schnabel v. Waters, 549 P.2d 795, 800 (Colo. App. 1976) (report itself held inadmissible due to multiple levels of hearsay); Styskal v. Brickey, 158 Neb. 208, 222, 62 N.W.2d 854 (1954)(police officer); Maxwell v. Fink, 58 N.W.2d 415, 264 Wis. 106 (1953)(witness to airline crash).
Contra Davis v. Colgin, 244 S.E.2d 750, 750-51 (Va. 1978).{/footnote} or one prepared by another.{footnote}Wallace v. Skrzycki, 338 Mich. 165, 61 N.W.2d 106 (1953).{/footnote}

4. Use as Impeachment

A witness’s statement in an accident report may be used as impeachment whether or not it may be introduced as substantive evidence under a hearsay exception.{footnote}Kalamazoo Yellow Cab Co. v. Kalamazoo Circuit Judge, 109 N.W.2d 821 (Mich. 1961).{/footnote}

5. Exclusion as Evidence of Remedial Measures

Internal reports analyzing an accident which are the subject of a suit are generally not rendered inadmissible under the rule barring evidence of subsequent remedial measures.{footnote}Prentiss & Carlisle v. Koehring-Waterous, 972 F.2d 6, 9-10 (1st Cir 1992) (admissible even though investigation of fire led to remedial measures); Allred v. Maersk Line, Ltd., 35 F.3d 139 (4th Cir. 1994)(captain’s redacted report on seaman’s accident admissible where no subsequent remedial measures discussed);
Ensign v. Marion County, 914 P.2d 5 (Ore. App. 1996).
See also Rocky Mountain Helicopters, Inc. v. Bell Helicopters, 805 F.2d 907, 918 (10th Cir. 1986) (holding post-accident tests of allegedly defective helicopter part admissible and stating, "[I]t would strain the spirit of the remedial measure prohibition in [FRE] 407 to extend its shield to evidence contained in post-event tests or reports."){/footnote} See also REMEDIAL MEASURES–Internal Reports.

6. Exclusion on Other Grounds

In dicta, the United States Supreme Court observed in Beech Aircraft Corp. v. Rainey that accident reports are subject to exclusion under FRE 403 if found to be unfairly prejudicial.{footnote}488 U.S. 153, 168 (1988) (discussed in § 2, supra).
See also Lubanski v. Coleco Industries, Inc., 929 F.2d 42, 45-46 (1st Cir. 1991) (accident report containing trooper’s conclusions presumptively admissible, but trial court’s exclusion of report upheld because report could have properly been excluded on grounds of being confusing, misleading and cumulative).
{/footnote}

7. Authentication

As with public reocrds generally, an accident report may be authenticated by providing a certified copy.{footnote}E.g., State v. Williams, 932 S.W.2d 546, 552 (Tex. App. 1995).{/footnote} See PUBLIC RECORDS AND REPORTS.

Bibliography

John A. Tarantino, Using the Automobile Accident Report Privilege to Bar Police Officer Testimony, 4 DWI Journal 6 (Jan. 1989).
Randy R. Koenders,Annotation, Admissibility of Police Officer’s Testimony at State Trial Relating to Motorist’s Admissions Made in Or for Automobile Accident Report Required by Law, 46 A.L.R.4th 291 (1996).
Annot., Admissibility In State Court Proceedings Of Police Reports Under Official Record Exception To Hearsay Rule, 31 A.L.R.4th 913

LawServer