In Indiana auto accident or large truck accident litigation the potential for a traffic ticket to be admitted into evidence at trial is truly a double edged sword. Evidence of a traffic violation issued against the plaintiff, or lack of a ticket to a defendant, which reaches the jury can destroy your client’s credibility and ultimately his or her case. Conversely, getting the judge to let in a traffic violation against the defendant in a hotly disputed liability case can tip the scales in a plaintiff’s favor. In order to tackle this issue, consider the following two scenarios.
Scenario 1: Keep It Out
Ticket Issued To A Plaintiff
The presentation of your injured plaintiff’s case to the jury has gone well. Your client made a good impression, a witness described a horrendous collision, the doctors described the injury with a clearly understandable precision. Then, the defense calls a police officer to the stand and asks him if he gave out any traffic tickets related to the accident, and the answer is “yes, I cited Mr. Plaintiff for failure to yield.” Although you know your client pleaded nolo contendere to the ticket, you can feel the wind go out of your sails as you look at the jury and realize the negative impact a traffic citation has made. While you try to save the day on cross, the jury has already made up their mind that police officers don’t give out tickets unless a person broke the law. To them a police officer’s testimony about a ticket is the gospel, to you it is the kiss of death for your case.
So how does one keep this damning evidence from reaching the ears of the jury? The best approach is to first raise the issue in a motion in limine. While objections can, and should, be made at trial to the introduction of traffic tickets, it is better to raise the issue with the judge in advance of trial to give him time to think through the issue and the applicable case law. It is also better to raise the issue prior to trial because if a jury hears the defense ask an officer if he issued any traffic tickets and plaintiff’s counsel objects, it really doesn’t matter how the judge rules. In the eyes of the jury the objection may be viewed as nothing more than an attorney trying to hide the obvious guilt of his client. Raising the issue prior to trial helps to prevent the jury from even hearing the words “traffic ticket.”
In seeking to exclude evidence of a traffic ticket, the starting point is the following principle of law: “In actions to recover for injuries sustained allegedly as a result of the negligent operation of a motor vehicle, evidence of prior criminal convictions for the same acts is generally excluded, either because of the often perfunctory nature of the ‘criminal’ proceedings in such cases …, or because of traditional reasons as to variations in parties, procedures, and the like.” Lepucki v. Lake County Sheriff’s Dept., 801 N.E.2d 636 (Ind. Ct. App. 2003). In Lepucki, the plaintiff, Maria Lepucki and a police officer collided while the officer was on an emergency call. Another police officer investigated the crash and issued Maria a traffic citation for failure to yield to an emergency vehicle. Maria was found guilty of the Class C infraction at a criminal bench trial and was ordered to pay $1.00 plus court costs. The Lepuckis then filed a civil action against the Lake County Sheriff’s Department, where the trial court allowed the investigating officer to testify to the fact that he issued the citation. Id. at 638.
The appellate court reversed holding that the admission of evidence pertaining to the citation was reversible error. Id. at 639. The court based its decision on two evidentiary principles, hearsay and undue prejudice. Regarding hearsay, the Lepucki court found that Maria’s traffic infraction was not within the scope of IC § 34-39-3-1 or Ind. Evidence Rule 803(22) which provide exceptions to the hearsay rule for felony convictions. Id. Furthermore, the court found that the prejudicial effect of the citation outweighed its probative value, in violation of Ind. R. Evid. 403. The Lepucki court reasoned that the jury, provided with the applicable statute on failure to yield, was to consider the negligence of both parties and decide for themselves whether the plaintiff, in fact, failed to yield the right of way. Id. at 639-40.
Another avenue to pursue in excluding traffic tickets from trial is that such evidence involves impermissible opinion testimony. The defining principle on police officer’s opinion testimony contained in police reports can be found in Lee v. Dickerson, 183 N.E.2d 615 (Ind. Ct. App. 1962): “[S]tatements contained in a report compiled by a police officer concerning the cause of or responsibility for an injury to the person or property are properly excluded from evidence on the basis that it constitutes an opinion or conclusion as distinguished from a statement of fact and/or that it represents statements made by someone else which were given to the investigating officer rather than the reporting officer’s own personal observations.” In other words, Indiana law provides that “facts” contained in a police report are admissible, but not conclusions or opinions. Dale v. Trent, 256 N.E.2d 402 (Ind. App. 1970). “Conclusions and opinions are not admissible because they invade the province of the jury or the court to make its own determinations.” Id at 407. The portion of the police report concerning the contributing or primary cause of any motor vehicle crash are inadmissible. Specifically the statements provided by the witnesses which are hearsay. As such, any testimony proffered by a police officer as to fault must be excluded. See, Prange v. Martin, 629 N.E.2d 915 (Ind. App. 1970) (Court found that police officer’s opinion on causation based solely on the account of drivers at scene of accident should not have been admitted, but because defense counsel did not object at trial, it was not a reversible error on appeal).
No Ticket Issued To A Defendant
Lastly, and just as dangerous to a plaintiff’s case is a defendant’s attempt to elicit testimony that a traffic citation was not given to the defendant. The danger here is that a jury may presume that the defendant did not do anything wrong if he was not given a ticket. While there is very little Indiana case law on this point, the principles mentioned above are just as applicable in the “non-ticket” situation. Other jurisdictions have dealt with the issue and reached results similar to Lepucki in the context of the inadmissibility of non-citation testimony. Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir. 1976). In Brown, there was a motion in limine granted concerning officer testimony of the fact that no traffic ticket was issued. Id. at 1026. Still, the defense counsel in Brown took advantage of every possible opportunity to suggest to the jury that, in fact, his client had not received a traffic ticket. Id. at 1028. The court found defense counsel’s mere allusion to the fact that no traffic ticket was issued against his client to be prejudicial and worthy of granting a new trial. Id. Citing to and applying Brown’s rationale, to a non-citation issue, the court in Cunningham v. Washington Gas Light Co., CIV. A. No. 86-2392, 1988 WL 90400, at *1 (D.D.C. August 11, 1988) held that “[t]he danger that a jury will accept a non-conviction as determinative outweighs any probative value that such evidence may hold.” See also, Ingrum v. Tucson Yellow Cab Co., 642 P.2d 868, 872 (Ariz. App. 1981) (“The fact of citation or non-citation of a driver by the investigating law enforcement officer is inadmissible in an action for negligence.”); Simpson v. Robinson, 361 A.2d. 387, 389 (Pa. Super. 1976) (“We conclude that it was error to admit into evidence testimony that defendant did not receive a traffic citation after the accident.”).
In examining the case law concerning admissibility of traffic citations, it is apparent that more than one argument may be successful in excluding such evidence from trial. Hearsay, undue prejudice and impermissible opinion testimony are all valid issues to be raised in a motion in limine. Gauging the success of these arguments is dependent on the specific facts of a case. Facts may exist where it is difficult to keep this evidence out. Or perhaps the circumstance are such that the plaintiff wants to use a traffic citation against a defendant at trial, hence scenario 2.
Scenario 2: Let It In
You are now representing a client involved in an auto crash case on a foggy wet day where liability is hotly contested. The battle revolves around a “he said, she said” argument concerning who ran the stop sign, your client or the defendant? The investigating officer was on the scene just a few minutes after the collision, and while there were no eye witnesses, the officer took detailed measurements of the skid marks and the positions of the vehicles and concluded that it was the defendant driver who ran the stop sign. The defendant pleaded guilty to the citation issued by the officer and paid the appropriate fine. Now you want to introduce the traffic citation at trial and/or call the police officer to testify that in his opinion the defendant driver ran the stop sign. With your previous experience on how crucial this type of evidence can be in convincing the jury, you are sure that getting this into evidence can win the case.
So now the question is how does one get this evidence in front of the jury? The same issues of hearsay, undue prejudice, and opinion testimony are still in play, but in this scenario there are a couple of facts working to the plaintiff’s advantage. First, regarding hearsay, is the fact that the defendant pleaded guilty to the citation and paid the fine. He did not plead nolo contendre, nor was he convicted at trial. Thus, the defendant has, in essence, made an admission that he ran the stop sign. Such a party admission against interest is not hearsay. The Lepucki court noted that had Maria admitted to the traffic citation, that fact would have been admissible as a statement by a party-opponent. Ind. Evid. R. 801(d)(2). Lepucki. 801 N.E.2d at 640, n.3. Thus, the distinction between checking the box no lo contendre, or guilty on a traffic citation may decide whether the ticket is or isn’t admissible. In this scenario, it is not hearsay and may come into evidence.
Even if the traffic ticket is not hearsay, there is still the issue of whether its admission into evidence violates Ind. R. Evid. 403. A court could still find that the probative value of admitting the ticket into evidence is outweighed by the prejudicial effect it will have on the defendant. A court’s application of Rule 403 is certainly a discretionary call, and opinions cut both ways on this issue. Still, an argument can be made that the defendant in this scenario is not unduly prejudiced. While a citation for failure to yield may give rise to negligence per se, it does not equal liability per se. Pontious v. Littleton, 255 N.E.2d 684, 690 (Ind.Ct.App. 1970). The Pontious court held that a failure to yield the right-of-way does not make a party liable per se. “[S]uch a party may rebut the prima facie evidence of negligence by presenting evidence that his acts were the acts of a reasonably prudent man under the same or like circumstances and further to place liability on the party violating the statute his violation of the statute must be shown to be the sole proximate cause of the collision or of his own injuries, and under which condition he could not recover.” Id.; see also Osterloo v. Wallar ex rel. Wallar, 758 N.E.2d 59, 62-63 (Ind.Ct.App. 2001). Here, the defendant can claim that he acted reasonably under the foggy conditions which limited visibility at the time of the crash. Additionally, the defendant can claim that even if he did run the stop sign the plaintiff has a duty to slow down in the foggy and wet weather conditions and that the defendant’s negligence is not the sole proximate cause of the accident. Nevertheless, when it comes to Rule 403, each case is unique with the question of unfair prejudice somewhat of a wild card.
What if the judge rules that the traffic citation in this situation is hearsay and/or violates Rule 403? The plaintiff may still be able to accomplish the same objective through opinion testimony offered by the police officer. Before the police officer’s opinion on who was at fault can come into evidence, he must be qualified as an expert. Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 135 (Ind. 2005). Whether a police officer is an “expert” is a wide open question. A police officer who has years of experience in handling auto crashes and filled out thousands of police reports may have enough experience to render the officer an expert. Still more helpful is if the officer has had some training in accident reconstruction. Koziol v. Vojvoda, 662 N.E.2d 985, 990 (Ind.Ct.App. 1996). For an officer’s opinions to be admissible it generally must be based on something more than just witness statements. In Koziol, in addition to speaking with the parties, the officer examined the lighting conditions in the area, completed a thorough accident report, observed the intersection and then based on the grade of the roadway and other factors, formed the opinion that the defendant was at fault. Id. at 991. Therefore, in this scenario it is helpful that shortly after the collision the officer took measurements and made detailed observations about the position of the vehicles. Despite the ambiguity of qualifying an officer as an expert, if the officer does qualify as an expert, he can provide opinions as to the ultimate issue of fact before the jury. “Evid. Rule 704(a) provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” Id. at 990. Depending upon the experience and training of the officer, a judge may be inclined to let his opinion on fault come into evidence.
Whether it be through admission of a traffic ticket where a guilty plea was entered or through a police officer’s testimony on fault, there are certainly avenues to pursue in attempting to admit evidence of a traffic violation at trial. Keeping in mind that this issue can cut both ways, it is also possible that these same arguments can be made by a defendant attempting to admit evidence of a plaintiff’s traffic violation. Still, knowing both sides of the argument provides an advantage in successfully litigating your client’s case.