Why Didn’t I See the Police Report: Common Questions From Jurors and the Rules of Evidence in Virginia

After a trial I once asked a juror to give me feedback on the process of sitting through the trial, listening to the evidence, and deliberating on a verdict.  I asked her whether there was anything I could have done to make the process easier or more clear to a person hearing the facts for the first time.  The first thing the juror asked was: “If there was a police report about the collision, why didn’t we get to see it?”   I explained to her that, as attorneys, we must follow rules of evidence.  In Virginia police reports are inadmissible because they are considered hearsay.

What is hearsay?   Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted.  According to Rule 2:802 of the Virginia Rules of Evidence, hearsay is not admissible. The public policy behind this rule is to keep out evidence that is unreliable or prevents a party from cross-examining the person who made the statement because that person is not in the courtroom.

 In most cases, when a police officer writes up an accident report, they just document what they are told at the scene of the collision. This includes the names of the involved drivers, the owners of the involved vehicle and the applicable insurance information. Many officers also document their best guess as to the pre-collision speed of the vehicles based on the statements of the individual drivers or witnesses at the scene.  Often, these statements  are not transcribed word-for-word.  When the officer summarizes what they have been told, the report can contain errors or at least remain open for interpretation. All of these circumstances render information in the accident report somewhat unreliable and thus inadmissible at trial.

 Lawyers from either side may still call the officer who wrote the report as a witness and have them testify at the trial.  The officer is allowed to look at the police report to refresh their recollection of the facts, but cannot testify directly from the report or admit the report as an exhibit for the jury to review.  The simple answer to the juror’s question was that the rules of evidence are in place to make sure that the evidence presented is as accurate and reliable as possible. A police report does not meet those stringent requirements.

 It is important to remember that while the police report itself is inadmissible, direct statements from either party made to the police officer fall under an exception to the prohibition against hearsay. Rule 2:803 of the Virginia Rules of Evidence allows statements of a party that are against his or her own interest to come in through testimony of a person who heard them. By way of example, if the defendant in a civil case told the officer, “Gosh, I didn’t see the red light until I went through it,” the officer would be allowed to tell the jury what the defendant said at the scene even though the statement was made outside the courtroom. When presented through sworn testimony, these verbatim statements are accurate and reliable enough to meet the court’s test for admissibility. In that regard, the evidence is still presented to the jury even if the document on which the statements were written on remains with the responding police officer.

About The Author: Kathleen Smith is a personal injury attorney in Fredricksburg, VA. She is experienced in handling a variety of cases including car accidents, truck accidents, and pedestrian accidents.