Attorneys have a full arsenal of strategies at their disposal in the course of cross-examining an opposing party or witness during a trial in order to undermine that person’s credibility in front of a jury. “Impeachment by omission” is one such strategy whereby the attorney will use a fact stated by the witness at trial and claim that the failure of the witness to state that same fact under prior circumstances in which the fact naturally would have been made may undermine the credibility of both the fact the witness stated and the witness him or herself. However, as shown in Manata v. Pereira, 2014 N.J. Super. LEXIS 89 (App.Div. June 20, 2014), the source of the omission upon which the attorney attempted to impeach the witness must be admitted into evidence at trial and have circumstances indicating its trustworthiness for this strategy to work.
The Manata case arose from an automobile-pedestrian collision in Newark, New Jersey. The plaintiff, Maria Manata, testified she crossed a street in a crosswalk at an intersection on her way to work. As she neared the middle of the street, she stated she saw a car driven by the defendant Francisco Pereira, making a left turn towards her, which hit her, causing injuries. The defendant had a different version, stating the plaintiff stepped out from between two buses in the middle of the block and he did not have time to stop when his car struck her. The police did not respond to the accident. That evening the defendant went to the police station to fill out an accident report. However the plaintiff had already made a report containing only her version of the accident. The defendant read the report and claimed he disputed plaintiff’s version of the accident with the police officer, but, according to the defendant, the officer refused to change or add to the report.
At trial, the plaintiff’s attorney did not admit the police report into evidence or call the police officer who made the report to testify, but cross-examined the defendant on the report’s contents. The defendant kept to his story, telling the cross-examining attorney that the report was wrong and he had tried to have it changed. Nevertheless, the defendant admitted his version of events were not represented in the report. The plaintiff’s attorney ultimately argued in his summation that the defendant’s testimony lacked credibility because his version of the accident, missing from the police report, was a recently made-up fabrication. The jury, essentially believing the plaintiff’s version because it was in the police report, found for her and awarded her a substantial sum.
However, the Appellate Division disagreed with the conduct of the plaintiff’s counsel. While police reports are generally admissible into evidence as business records of regularly conducted activity to prove the fact that a statement was made to an officer, likewise, evidence of the absence of a statement in a police report may be admissible to prove the non-occurrence or nonexistence of the statements. However, in order to enter the police report into evidence, an official in the police department, typically the officer who took the report himself, needs to state the report was authentic and made in the course of a police officer’s regular duties. The court has the power to refuse to enter a business record into evidence if the source of the information or the circumstances of its preparation indicate that it is untrustworthy. Therefore, if the authenticating witness states that the report was made contrary to regular practice or under circumstances indicating it was not trustworthy, the court may exclude the report.
Here, the plaintiff’s attorney never entered the police report containing plaintiff’s version of the accident into evidence for the jury to examine. Therefore, the court could not make a finding about the report’s reliability. Without an officer’s testimony authenticating the report, it was not a reliable source of information upon which plaintiff’s attorney could cross-examine the defendant and his reliance on its substance, without entering it into evidence, was improper. Thus the plaintiff’s attorney’s “impeachment by omission” of the defendant, claiming he had made up the story about the plaintiff darting into the street mid-block based upon the fact that such a statement was not included in the report, was improper. The appellate court ordered a new trial with instructions on how to limit the plaintiff’s attorney’s use of the police report.
