When a police officer or highway patrolman investigates a collision, he or she puts data from the investigation into a program which then turns out an “Official Oklahoma Traffic Collision Report”. It is absolutely PACKED with data. The front page looks like this:

collision report

The reports are public records. They cost $7.00 and can be obtained by a party to the collision, their attorneys, law enforcement, insurers, and the media.

But, they can’t be used at trial in our Oklahoma State District Courts. The report is hearsay, and the hearsay exception for records of government investigations does not apply to an investigation of a specific incident in state court. In federal court it does, but most personal injury cases don’t end up in federal court.

Also, the officer cannot testify to his opinions about who was at fault in the wreck. This is because of an archaic rule of evidence called the “ultimate issue”. In common law a witness was not permitted to state what the jury was supposed to conclude. They couldn’t say “Mr. Stone is guilty of obstruction of justice” or “This product was unreasonably dangerous and defective” or “It is my opinion that Driver 1 changed lanes unsafely and was at fault in this wreck.”

We adopted the Oklahoma Evidence Code around 1980.  It had a provision that an expert could testify to his or her opinions, even if the opinion “invaded the province of the jury” by “testifying to the ultimate issue”.

However, our State Supreme Court held, in a case called Gabus v. Harvey, that they would just ignore that language in the law and a police officer could not testify who was at fault because it was “the ultimate opinion”. Professor Leo Whinery, who was a leader on the Committee that wrote the Evidence Code and also wrote a great set of books on Oklahoma Evidence, turned purple and apoplectic every time he thought of Gabus v. Harvey. It may be what turned Leo’s hair so white. Regardless, it still stands. The officer’s report is not admissible, and the officer cannot testify who he gave a citation to or who was at fault.

I frequently have potential clients call up angry or upset because the investigating officer didn’t get the facts right. It’s like a referee who blows a call: the coach is furious, the fans are throwing their flat-screen tvs out the window, and three days later the league apologizes and said they made a mistake but too bad so sad it doesn’t change the result. I’d almost feel sorry for the Saints this year, except they deserve it for head-hunting Brett Favre in the NFC Championship Game back in 2009. “Skol!”, and “Minnesota Miracle!”. Karma’s a you-know-what.  Too bad, so sad.

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But, unlike the sporting event where the referee was actually watching the event, got to see it in slow motion on instant replay, and still blew the call, investigating officers usually don’t usually get to actually see what happened. They can look at the physical evidence and listen to the drivers and witnesses, but that’s about it unless somebody had a dash cam or surveillance camera on when it happened. But how in the world can an officer tell if Driver 1 had the green light and Driver 2 had a red, or vice versa? It’s a classic “he said / she said” so usually they just don’t assign the blame to either party and let it get sorted out later.

Still, the investigation report is important even though it can’t be used at trial, because it is used to evaluate cases for settlement purposes. Lawyers and insurance companies use accident reports to assess liability and injuries, especially at the beginning of a claim. The report lists the identify of drivers, passengers, insurance companies, and witnesses; has a diagram and narrative of the officer’s opinion about how it happened; tells about the weather, road conditions, time and place of accident; shows where the point of contact was on each vehicle; states what the vehicles were doing and whether they violated any traffic rules; and states the nature and severity of reported or known injuries. Here’s what a diagram and officer’s narrative might look like:

report diagram

We frequently contact investigating officers, interview them, and take recorded statements from them. Recently I asked an officer to come in because his diagram showed the other vehicle was at fault, but the report stated my client’s driver had made an improper turn. When I asked to clarify, he explained that it was an “input error” he made with the computer at the station, and agreed to go back and do an amended report correcting the error.

So, if you have been in a wreck and you think the officer didn’t understand what happened – and you don’t have a dash cam, and it wasn’t caught on surveillance video by an astronaut on the International Space Station or a spy satellite – I recommend against cursing out the officer, taking off in a fury, and going on social media to rage against the machine.

It would probably be better to get good medical care, call a good lawyer, and get some help evaluating and prosecuting your case.

If I can give you a hand, send me an email at gregh@fylaw.com, or call Foshee & Yaffe, 405 632-6668 and I’ll take your call if I can, or call you back shortly.