In automobile accident cases, the investigating police officer often writes his opinion regarding the cause of the crash. That opinion is based upon the presentation of the parties and witnesses. Unfortunately, witnesses who do not speak English well or who have suffered serious injuries do not get an opportunity to present the truth of what happened. Additionally, most officers do not have the training and education necessary to form opinions as to speed from skid, perception-reaction time, and other scientific methods used to determine cause of accidents.
Therefore, it is black letter law that the police officer’s opinions are not admissible in court. Nevertheless, a claimant’s demand uses the police officer’s opinion to convince the insurance company that the claim should be paid. The insurance companies routinely rely on the police officer’s opinion even though it is not admissible in a court of law.
If the claim proceeds to litigation, perhaps because of issues of causation or amount of injuries or simply because the insurance company does not want to pay, insurance defense counsel still try to present the inadmissible police officer’s opinion to the jury.
Prepared plaintiff’s counsel should file a motion in limine and obtain a court order that the police officer’s opinion may not be elicited during the trial. In a recent trial that I had, the defense attorney still tried to get the police officer’s opinion in through the defendant even though a court order prohibited such tactics. The only thing a plaintiff’s attorney can do in that situation is ask for a curative jury instruction and ask the court to admonish the defense attorney in front of the jury.
In a recent San Bernardino County Superior Court case, the defense attorney violated the court’s order and elicited the police officer’s opinion in front of the jury. (Pope v. Babick and Stanley (September 18, 2014), 2014 DJDAR 12971) The trial judge sanctioned the defense attorney $500.00, which is nothing compared to what the verdict would have been. The jury obviously listened to the police officer and defensed the case. The plaintiff appealed the defense verdict on the ground that the police officer’s opinion was only introduced through the misconduct of defense counsel. The appellate court strongly disapproved of defense counsel’s conduct but did not reverse the decision. Thus, plaintiff’s attorneys must be ever vigilant to prevent defense attorneys from introducing clearly inappropriate police officer’s opinions. It appears that the courts, trial and appellate, condone such conduct.
