Posted Mar 2023
There is a distinction on the admissibility of reports in criminal and civil cases. The public records exception in Evidence Rule 803(8)(B) allows police reports in civil cases but does not allow these reports in a criminal case unless used against the government. The reasons for the distinction include the Confrontation Clause which applies only in criminal cases. “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” (Sixth Amendment). Although a police report is inadmissible in a criminal case, officers are allowed to use their reports to “refresh their recollection.”
Here is a brief outline on what, if anything, in a police report may be admissible in a civil case. The report itself is an exception to hearsay. This exception pertains to the officer’s observations and factual findings. Facts observed at an accident scene stated in a report are admissible. E.g, Hudgins v. Southwest Airlines, 221 Ariz. 472, 484 (App. 2009) (allowing FBI reports as evidence in a civil case). In subsection (iii) the exception allows “factual findings,” but in an accident case, findings in the report may be challenged when there is inadequate foundation for them. For example, if the officer preparing the report is not qualified as an accident reconstructionist (and most investigating officers are not), certain factual findings or opinions may not be admissible. Just because the report itself meets the requirement of a public record exception in a civil case, this does not mean everything in the report should come in as evidence. Factual findings and opinions can still be challenged because of a lack of trustworthiness. Cf., State ex Rel. Miller v. Tucson Assoc., 165 Ariz. 519 (App. 1990); Larsen v. Decker, 196 Ariz. 239 (App. 2000) (trial court did not abuse its discretion in excluding medical records and bills from Social Security Administration and report finding plaintiff permanently disabled after auto accident).
Evidence of a citation is inadmissible for the same reasons above. Most officers base their opinions on brief discussions with parties and witnesses. Opinions in the report may be successfully challenged if the opinion depends on witness credibility. They are also objectionable because the officer is deciding what law applies and/or the opinion usurps the role of a jury. Ingrum v. Tucson Yellow Cab Co., 131 Ariz. 523, 527 (App. 1982) (“The fact of citation or non-citation of a driver by the investigating law enforcement officer is inadmissible in an action for negligence.”); A.R.S. § 28-1599 (“an admission of the allegation of a civil traffic complaint or a judgment on the complaint is not evidence of negligence in a civil. . . proceeding”); cf., Lynn v. Helitec Corp., 144 Ariz. 564 (App. 1984) (questioning trustworthiness of expert opinions based on unreliable witness hearsay).
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