Beardsley, Jensen and Von Wald
The case of Johnson v. O'Farrell, 2010 S.D. 68, could have significant ramifications. Plaintiff brought an action against the owner of a bar and a bar employee for injuries sustained when Plaintiff was thrown against the wall by the bar employee. During a police investigation, the Defendant bar owner and employee admitted that the employee threw Plaintiff into the wall. During the civil trial, however, the Defendants' testimony was different - so, Plaintiff used the police report to impeach the credibility of Defendants even though the officer testifying was not the officer who took the statements and prepared the report.
The Court held that the police report was a business record so was admissible to prove the police officer took the statements. As for allowing the admission to be used substantively against Defendants, the Court determined it was appropriate because it was an admission by the Defendants:
Deputy Koens's report, other than the usual formalities, contains nothing but defendants' statements given in the court of Koens's interview. Therefore, the reliability of the sources of the information is not in question, and substantive use of the defendants' statements was permissible as party-opponent admissions under SDCL 19-16-3(1) (Rule 801(d)(2)(1).
Some would argue that the police report – and the statements – is inadmissible hearsay, particularly since the officer who prepared the report was not personally present in Court. However, the Court held that the report and statements of the Defendants were admissions and admissions are an exception to the hearsay rule.
If you're legal counsel for the Defendants, how do you cross-examine a police report? How do you cross-examine a police officer who is not personally present in court?
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1. You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future?
2. You learn another person is hurt using a machine that has injured others in the past and will injure others in the future?
3. You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?
What should you do?
Try to prevent the next accident, injury, and catastrophe from happening.
How can you do that?
Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.
Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.
Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker.