By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the fifth part of a series of posts about what evidence can, cannot, should, and should not, be used in court.
Part V, Police Reports as Hearsay
Police reports are hearsay. They are something the officer stated (in this case wrote) outside of the current court proceeding and they are typically introduced to show that the events described in them actually happened. You might, therefore, think that they should not be used in court. However, clearly they are – all the time. There are several reasons for this.
First, there is an exception for recorded recollections. That is, if a witness writes something down in the past and cannot remember it when it comes time to testify, their statement can be read into evidence provided that the witness thinks the prior writing accurately reflects their knowledge and was written down at a time when they knew and still remembered whatever is recounted in the writing. Thus, in the case of a police report, the officer wrote events down in the report so he would not forget them later. When he gets to trial, if he does not remember something from his report, he is allowed to simply read the report into evidence as long as he thinks it is accurate.
Second, there is an exception for records kept in the ordinary course of business. A police officer’s regular practice in the business of policing is to observe crime and report it. Thus, an officer’s reports are often considered business records and therefore are allowed into evidence as an exception to the hearsay rule. There is some question as to whether this is strictly proper since police records are usually created in anticipation of use in litigation and thus are not like normal business records. Moreover, it is important to note that if the officer attempts, in his report, to say that he interviewed a witness who said “X,” that may not be allowed. That is, even though the report itself is not hearsay, what the witness said still is hearsay. In other words, it would be “hearsay within hearsay.”
However the most common way police reports are used does not even implicate the hearsay rule. If a witness does not remember something, a document (even if the document would otherwise be hearsay) may be shown to him to see if he can remember more after seeing it. That is, materials which are used to “refresh recollections” may be shown to a witness with very few restrictions. Thus, a prosecutor may “refresh” a police officer’s memory by showing him his report while he testifies. While the officer’s report itself cannot be used as evidence or read into evidence under this rule, the officer can use his report to help him remember what happened and then testify about what happened.
Some other less-used exceptions apply to police reports also. But these are the three most common reasons why, even though police reports fit the definition of hearsay, they are frequently used in court.
If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses. In addition, if you have been wrongfully convicted, arrested, imprisoned, maliciously prosecuted, or have suffered some other wrong, feel free to contact one of our experienced Civil Attorneys, for a free initial consultation.