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Univ. of South Carolina School of Law

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Tuesday, October 16, 2007

Just Her Luck?: Will Lohan's suer be able to exclude CHiP report as hearsay?

Ray Ortega has sued Lindsay Lohan for crashing her car into his at Hollywood hot spot The Ivy.  Lohan has counter-sued Ortega and claimed that the accident was not her fault.  According to Lohan, she was driving down a street filled with paparazzi at the legal speed limit of 30 miles per hour when Ortega tried to make a U-turn; Lohan then crashed into Ortega when she couldn't stop in time.  Ortega, meanwhile, claims that he has several eyewitnesses who will claim that Lohan was driving over 60 miles per hour and that she had drunk some alcohol before the accident. 

The evidentiary issue revolves around a California Highway Patrol report which states that no alcohol was involved in the incident.  According to Ortega's lawyer, however, this report constitutes hearsay.  Unless there are facts of which I am not aware at play, however, I do not see how the report would constitute inadmissible hearsay.

Obviously, the report would be a statement offered by Lohan to prove the truth of the matter asserted -- that no alcohol was involved in the crash.  At the same time, business records and public records (such as police reports) are admissible as exceptions to the rule against hearsay in civil trials in many circumstances. See Federeal Rules of Evidence 803(6) & (8).  California appears to include both of these exceptions in Evidence Code Sections 1270-1272.

The main requirements of these exceptions are that the report was made in the regular course of business and that the report was made at or near the time of the act being reported.  Police reports are prepared in the regular course of police business, and it appears that the police report was made soon after the accident.

The only way that I could see the report constituting inadmissible hearsay would be if the "no alcohol" comment was based upon the statement of someone such as a bystander.  In that case, we would have "hearsay within hearsay," and the report (at least to the extent it contained hearsay) would be inadmissible.  Barring that, however, the report should come into evidence in the unlikely event that the lawsuit is not settled before trial.

-CM

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Comments

Police reports, for the most part, are inadmissible in both federal and California courts for several reasons, including, for the most part, that they are not based upon the police officer's personal observations nor upon narrations of persons who has a business duty to report to the officer.

See, e.g., MacLean v. City & County of San Francisco, 151 Cal.App.2d 133, 311 P.2d 158 (1957)

Posted by: L K Chapman | Jun 22, 2010 10:34:50 AM

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