The Use of a Police Report at Trial to Refresh the Recollection of an Investigating Officer and the Application of the Hearsay Rule and the Exceptions: Capsel v. Burwell
The use of a police report to refresh the recollection of a police officer at trial is considered the use of a hearsay document and subject to establishing a proper foundation and proper invocation of some appropriate exception to allow the introduction of the hearsay document. When the officer cannot specifically identify who he/she talked to in getting a version of events to reconstruct on paper a collision in preparing the report, and when the officer did not personally witness the collision (as is usually the case), a hearsay on hearsay situation arises and the report may therefore not be used to refresh the officer’s recollection nor be used substantively as a past recollection recorded.
Trooper Thomas Vodicka was called as a witness in a rear-end motor vehicle collision by the plaintiff. Plaintiff was a passenger in a vehicle being operated on Interstate 80 by his grandmother, Beverly Rodriguez. The defendant slammed into the Rodriguez vehicle from behind, and the defendant was issued a citation by Vodicka, which she subsequently pled guilty to. The trooper had prepared a police report shortly after the collision in which he attributed in his narrative portion of the report a statement by one of several occupants in the plaintiff's vehicle to the effect that a truck was driving recklessly and cut off the Rodriguez vehicle, causing Rodriguez to brake. The trooper’s report did not contain any indication that the defendant mentioned the truck to him, but he acknowledged that it was possible that the statement regarding the truck was misattributed to one of the occupants of the Rodriguez vehicle and possibly made by the defendant. At trial, none of the six family members involved in the collision nor the plaintiff, all in the Rodriguez vehicle, recalled a truck cutting them off and forcing the grandmother to slam on the brakes before being struck from behind.
On cross-examination of Trooper Vodicka, the defense used the police report. The trial court allowed the defendant to use the report by reading from the narrative, based on the theory that the defendant was using the report to refresh the recollection of the trooper. The trooper had testified that he had prepared the report shortly after the collision and had firsthand knowledge of the statements in the report, though he could not independently recall the collision, nor could he specifically identify any of the individuals who allegedly provided him with the statements concerning the truck cutting off the Rodriguez vehicle.
Plaintiff had filed a motion in limine prior to trial, which was granted by the trial court, finding that the statements in the trooper’s report were barred with the past recollection recorded exception to the hearsay rule not applying, unless Vodicka’s testimony changed at trial. However, the trial court had reserved ruling on the portion of the motion pertaining to the admissibility of the statements on other grounds. At trial, when defense counsel began reading from the police report, the trial court held a sidebar on plaintiff’s objection to this use of the report. Plaintiff’s counsel argued the statements in the report were still inadmissible because Vodicka had not testified specifically as to which individual in plaintiff’s vehicle provided the statements to the trooper as to being cut off by another vehicle. Despite this, the court found that defense counsel had refreshed Vodicka’s recollection and there was adequate foundation to allow the statements to be admitted.
The appellate court found that the statements at issue constitute hearsay on hearsay, or double hearsay, in that the report itself is hearsay, and the subject portion of the narrative was based on hearsay statements regarding an unidentified truck that was not present at the scene of the collision, allegedly made by a single unattributed source at the scene. Vodicka’s memory was not sufficiently refreshed as to any relevant facts in that he testified at trial that he did not remember who provided him with the statements regarding the unidentified truck. The report therefore could not be used to refresh his recollection as it could not be used to substantiate any relevant facts. Vodicka did not witness the collision, and he could not identify who, if anyone, provided the statements in his report.
The past recollection recorded exception to the hearsay rule also did not apply to allow the statements in the report in. Citing Loughnane v. City of Chicago, 188 Ill.App.3d 1078, 1082 (1989), the appellate court set out the four prerequisites to admission of a police report as a past recollection recorded: 1) the witness must have no independent recollection of the occurrence/event recorded; 2) the report must fail to refresh the recollection of the witness; 3) the facts in the report must have been recorded at the time of the occurrence or shortly thereafter; and 4) the truth and accuracy of the report when made must be established. While arguably the first three requirements were met, in that Vodicka testified that he wrote the report within hours of the report, he clearly remembered his investigation but could not recall whom he spoke to even after the attempt to refresh his recollection with the report. The last requirement regarding the truth and accuracy of the report could not be established in that he did not witness the collision and could not identify who provided the statements to him. His testimony as to the unidentified truck lacked the necessary foundation and was inadmissible under the past recollection recorded exception, or any other exception, to the hearsay rule and the trial court erred by allowing in the statements in evidence. Simply put, he could not identify who allegedly made the statements that he included in his report, and for that reason, the truth and accuracy of the report could not be established.
The next step in the analysis by the reviewing court was to determine whether the lower court’s errant ruling was harmless or warranted reversal, determined by whether the verdict would have been different if the evidence had not been admitted. The appellate court found it likely that absent the trial court’s admission of Vodicka’s testimony regarding the unidentified truck, the outcome of the trial would have been different. Vodicka’s testimony as to the statements in the report provided additional support for the jury to believe the testimony of the defendant as to the unidentified truck cutting off the Rodriguez vehicle, as opposed to the testimony of the plaintiff and other witnesses in the vehicle who did not recall a truck cutting them off. Therefore, the lower court’s act of admitting the statements in the report into evidence constituted reversible error meriting a new trial.
It is important to understand the distinction between refreshing an officer’s recollection with his/her report and the entry of the contents of the report as a recorded recollection. The Illinois Rules of Evidence and Justice Gino DiVito’s annotated commentary on the Rules are helpful. Rule 803(5) provides as an exception to the hearsay rule the following:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge.
Ill. R. Evid. 803(5)
Justice DiVito, in his Commentary to the Rule, indicates that this hearsay exception admits what is contained in the memorandum or record, thus allowing the trier of fact to determine the weight to be given the document. However, when using a document to refresh the memory of a witness, there is no created exception for admission of the document used to refresh memory. In that situation, the testimony of the witness based on refreshed memory is admitted under normal rules of evidence, and the refreshing document itself is not admitted into evidence. Gino L. DiVito, The Illinois Rules of Evidence: A Color-Coded Guide, p.269 (ISBA, 2024).
It makes sense in considering the reliability of the statements that were at issue in Capsel that the appellate court would not find that a recorded statement by the trooper was reliable when he was unable to attribute the statements to any particular witness and the statement concerned a material matter in the case: whether a truck had veered into the lane of travel such as to cause the vehicle in which the plaintiff was a passenger to come to a sudden stop resulting in a collision from the rear when defendant hit them from behind. There is not the necessary threshold of reliability here such as to allow in the hearsay-on-hearsay document. Police reports are specifically excluded from the subparagraph that allows admission of “public records and reports” as hearsay exceptions. Ill. R. Evid. 803(8). To allow in an officer’s report as a past recollection recorded will require more than what Trooper Vodicka was able to provide in terms of indicia of reliability.
Capsel v. Burwell, 2024 IL App (3d) 230170.
Richard L. Turner, Jr., Turner Law Group LLC, Sycamore, IL.