Week of May 7-13

In Shehab v. Powers, decided May 10, 2017 by New York’s Appellate Division, Second Department, the court addressed the admissibility of police reports at trial, and under what circumstances they might properly be redacted. A copy of the decision can be found here http://www.nycourts.gov/reporter/3dseries/2017/2017_03790.htm

In Shehab, the plaintiff challenged a jury verdict in favor of the defendant in a motor vehicle rear-end accident case. At trial, the parties disputed not only the manner in which the accident happened but also the location. According to the plaintiff, he was traveling on Sunrise Highway about 4 to 5 car lengths behind the defendant’s SUV, which suddenly braked, swerved left and stopped halfway off the roadway. Plaintiff claimed that he could not change lanes due to traffic and was unable to avoid rear-ending the defendant. He also claimed that the accident occurred about 500 to 600 feet away from the nearest traffic signal. In contrast, defendant testified that he gradually stopped because the traffic ahead of him was stopped for a red traffic signal. After his vehicle was stopped, he was rear-ended by plaintiff. A jury found in favor of the defendant on the issue of liability.

At issue on appeal was the admissibility of certain portions of the police accident report. The trial court judge redacted certain portions of the police report, concerning the location of the accident. The Appellate Division upheld the redactions because there was “insufficient evidence at trial to demonstrate that the disputed information was derived from the personal observations of the responding police officer, who did not witness the accident.” The Appellate Division noted that information in a police report is admissible as a business record exception to the hearsay rule “so long as the report is made based upon the officer’s personal observations and while carrying out police duties.” Where the information in the police report originates from witnesses who are not engaged in police business (and does not qualify for some other hearsay exception), the information is inadmissible and could be properly redacted.

This ruling can be used in motion practice or at trial when seeking to keep out (or redact) inadmissible portions of a police report, keeping in mind the evidence as to the officer’s personal observations of the vehicles, location, damage, etc.

The appellate court further held in Shehab that the trial court correctly precluded the plaintiff from cross-examining the responding police officer, his own witness, with respect to the accident location.