Strategies for Preserving Evidence after a Motor Vehicle Accident: Physical Evidence and Witness Statements
This series will address the various types of documents, electronic, human, and physical evidence that can and often will exist after a motor vehicle accident (including accidents involving commercial motor vehicles) and what should be done to preserve the evidence for future litigation. Part 1 was an introduction to the subject and looked at preservation letter. Part 2 considers preserving physical and witness statements. Part 3 reviews all the many motor carrier records that must be maintained. Part 4 discusses the various types of electronic data that may be available for retention after an accident.
Preserving Physical Evidence
An accident scene is replete with evidence that may be useful in determining what occurred. The physical evidence that can be gathered at the scene is much less malleable than any witness testimony, and may be useful in presenting an account of what happened prior to, during, and after vehicles have made contact with one another.
Drivers, investigating officers, and/or retained experts at the scene should document any tire marks, gouge marks, other road marks, fluid spills, and debris left by any of the vehicles. These items may allowing reconstruction experts to determine speeds, directions of travel, loss of control, and various other components of what occurred during the course of a collision that may not otherwise be available.
Photographing or taking video of the final resting places of the vehicles after the accident gives a definitive starting point for reverse-engineering an accident. Documenting the damage sustained to the involved vehicles allows parties to make further determinations related to crush force, velocity, and the directions of travel of the vehicles throughout the course of impact. The conditions of the tires on the involved vehicles should likewise be documented in order to help determine the amount of friction that was occurring between the tire and the roadway. For commercial vehicles, photos of tires may help determine whether the tires were in compliance with Department of Transportation equipment regulations.
The Accident Report and Driver’s Report
While most accident reports reflect an investigating officer’s comprehension of what the parties advised him occurred during the accident, it is not uncommon for an accident report to contain unintentional misrepresentations of what the parties told the officer. As soon as possible after an accident, a driver should obtain a copy of the accident report to evaluate if what the officer recorded in the “narrative” portion of the report accurately reflects what the driver told the officer. If the driver disputes what was recorded, he should communicate with the investigating officer and seek to have the report amended.
The contents of the accident report are typically inadmissible in court. Nevertheless, the accident report may contain information that the parties are unable to recall months after the accident and which might otherwise be lost, including:
- The time the accident occurred;
- The time that police were called;
- Weather conditions at the time of the accident;
- Identities of eye witness(es), inclusive of any written statements given by any witness;
- Whether the investigating officer took photographs; and
- Whether the officer suspected and/or tested for drugs or alcohol.
The investigating officer should have noted on the accident report whether he took photographs at the accident scene. Accident scene photographs taken by an investigating can be obtained from the Alabama Law Enforcement Agency, Photographic Services Unit.
An increasing percentage of police officers and state troopers have been equipped with body cams which they have begun to use during the course of their investigations. However, pursuant to ALEA policy adopted in October 2015, audio and video recordings may be retained for only a limited period of time. If any video or audio recording becomes part of a law enforcement case file, an officer must maintain the recording until the case has reached its final disposition. On the other hand, if the encounter that was recorded does not result in or become a part of a law enforcement case file, then the officer only has to maintain the recording for six (6) months.
In addition to any statements of the parties or witnesses that are contained in the narrative portion of the accident, many motor carriers have their drivers make a written statement about the accident. The FMCSR do not require that a driver make a written or recorded statement, but if one is made, the motor carrier should preserve it.
Witness Statements and Interviewing Law Enforcement
In addition to any potential written statements taken of non-party eyewitnesses at the accident scene, it is common prior to litigation for insurance providers and investigators to obtain written or recorded statements from witnesses. It is also common for the same insurance providers and investigators to obtain recorded statements from the parties to the accident. And it is not unusual for statements, taken days after the subject accident, to be considerably different in tenor and recollection, than testimony given months or years after the fact.
While it is important to make contact with the investigating officer and understand his perspective and particularly what testimony he might be expected to offer at deposition or trial, it can be difficult to connect with police officers and State Troopers who investigate accidents. Many are hesitant to speak with an attorney, and others may refuse altogether outside of being subpoenaed to appear for a deposition.
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 Ala. Code (1975) § 32-10-11 (mandating that no accident report shall be used as evidence in a trial); White Taxi Company v. Patterson, 63 So.2d 599 (Ala. 1952) (holding that accident reports are hearsay and do not fall within the business records exception to the general prohibition against the admission of hearsay evidence); Mainor v. Hayneville Telephone Company, 715 So.2d 800 (Ala.Civ.App. 1997) (holding that accident reports are automatically excluded from evidence and that the admission of accident reports into evidence is reversible error).