Episode 8: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss whether police reports are admissible. It’s a concern client often bring up during initial conversations with their attorneys. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. Lauren begins by commenting on the number of responses to the recent poll asking about topics and other subject matter the audience would like to Rob and Kevin to address in upcoming episodes. The feedback was terrific. As we dive into the topic, Kevin brings up a favorite answer given by many attorneys, “Well, it depends.” The general rule is that, in Kentucky courts, police reports are inadmissible as hearsay. Kentucky Rule of Evidence 803 contains the basis for what is not excluded by the hearsay rule. In sub-section 6 it lists records of regularly conducted activity (e.g. the business records exception). Sub-section 8 deals with public records and reports (e.g. the public records exception). Specifically, 8(A) focuses on investigative reports by police and other law enforcement personnel. This establishes police reports are not an exception to the hearsay rule. Manning v. Commonwealth Kevin summaries this Kentucky Supreme Court case, from the year 2000, which directly cites to KRE 803(6). In Manning vs. Commonwealth, the defendant in the murder case wanted to introduce the police report. The report identified someone other than the defendant as the possible perpetrator, based on the statements of an unidentified witness. The trial court ruled the police report was inadmissible as hearsay. The Supreme Court affirmed the decision. It was properly excluded under KRE 803(6). The Court also cites the Kentucky Evidence Law Handbook. Rob comments about the double hearsay issue because the report itself is hearsay, about someone else who’s making hearsay comments. The Supreme Court also cited Prater vs. Cabinet for Human Resources, dealing also with KRE 803(6). The opinion did note that the defense was able to ask the officer about the conversation with the unidentified witness, during cross-examination. That testimony was admissible, even though the actual police report was not. Rob notes that they didn’t have to consider the admissibility under KRE 803(8)(A), because it was obvious. However, the question was whether KRE 803(6) applied. Gorman v. Hunt This is a civil case. Gorman v. Hunt is another Kentucky Supreme Court decision from 2000. It’s often referred to as the “posed photograph case.” This was an automobile verses pedestrian case. The issue was whether posed photographs could be admitted and shown to the jury. Rob clarifies the case serves as an example of whether someone can recreate the area and taking photographs of the area. They’ve posed the scene. This case refers to an Advanced Life Support (ALS) Report, which would have been prepared by EMS personnel. In the opinion, it’s not referred to as a police report, but it’s functionally the same thing. The plaintiff wanted to use the ALS run report to show the defendant driver was exceeding 50 mph, at the time of the collision. The speed was based on testimony from unidentified bystanders. At trial, the court ruled the ALS run report was inadmissible. The court of appeals affirmed the verdict. The Supreme Court took it up on discretionary review. The Court ruled that the trial court had ruled properly with regard to the ALS run report. Campbell v. Marcum This 1968 automobile accident case addressed the admissibility of police reports and the information contained therein. This collision involved two vehicles. A Kentucky State Trooper completed the police report. The question was whether the trooper could read from his report, while on the stand. The defendant wanted this testimony from the trooper. However, the trial court refused to allow a reading from the police report. This issue was appealed. The appeals court affirmed the trial court’s ruling that prohibited the trooper from reading the report aloud. Kevin comments that no authority was cited regarding the admissibility of the report. Instead, a general treatise (not a Kentucky treatise) was used. It did not directly address hearsay. Admissions by Parties and Prior Inconsistent Statements Rob and Kevin will discuss two cases dealing with this topic. Again, clients often have questions about police reports, how they are going to be used and how to get statements either clarified or corrected. Day v. Commonwealth (2007) This is a criminal case involving a DUI conviction. Tammy Day was given a 7-day sentence with work release. During this time, her daughter was in a car wreck. Tammy petitioned for time to tend to her daughter. The ...
