Rules of Evidence

The proposed amendment to URE 416 raises a question in my mind about DUI violations. I do not know whether any DUI violations are Class C misdemeanors; my quick review of Title 41 provisions re: drinking showed Class A and B misdemeanors, but I do not know enough about criminal prosecution of persons for driving under the impairing influence of drugs or alcohol to discern whether they are ever prosecuted as Class C misdemeanors, which are subject to the proposed. non-admission rule. If so, I believe that an exception should be made in the public interest for such convictions. Also, I can conceive of some cases in which extreme reckless behavior should be admissible including misdemeanor conviction.
Lynn Wardle
Professor of Law

I question the wisdom of this rule change. An example may show the basic problem with this rule.
41-6a-209 makes it an offense to willfully disobey the direction of a school crossing guard or a construction flagman. Under 41-6a-202(2), because this provision is included in part 2 and apparently no other provision heightens the severity of the offense, it is an infraction and thus within the scope of the new rule.
If a driver willfully failed to follow a directive from a crossing guard and plowed into a kindergartner on her way to school or willfully failed to follow the directive of a flagman and mowed down a guy filling in potholes, and if the driver was cited AND CONVICTED of the offense, why would this violation of law not be admissible into evidence in a subsequent civil action where negligence was the issue?
It seems like it should at least be admissible as evidence bearing on the question of negligence, even though we have moved away from the notion of negligence per se. If in a particular case the prejudice of introducing the conviction was too great, Rule 403 provides what would appear to be an adequate remedy.
I readily concede that I am not privy to the Advisory Committee’s deliberations and perhaps there is a sound basis for this rule. Unbeknownst to me, this may be a rule adopted in most other states. As such factors are not, however, readily apparent from the face of the rule, it might be well to include the rationale and any insightful cross-references in an Advisory Committee note.

In my experience as a former Judge Pro Temp cases involving negligence resulting from trafic offenses often find their way into a small claims courtroom. This is even more prevelant now that the damages cap for filing small claims cases has been raised to $7,500.00.
In those cases, it is common that litigants are pitted against each other without anything but their own credibility to break the tie. But, where one party can introduce evidence of the other’s conviction for the related traffic offense, that evidence significantly aids in the process of determining negligence.
Even though the rules of evidence are loosly applied in small claims court, this rule places the judges pro temp between a rock and a hard place. Those judges have to decide whether this is one of those rules that are important to a small claims case (like certain hearsay rules), or whether it is expendable.
In the end, only those defendants that hire an attorney for small claims representation will be aided by this rule, because they can use it to their advantage. It seems to me that the intended simplicity of the small claims process will only be frustrated by this proposed rule, possibly resulting in more trials de novo and wasted judicial resources.

The comments opposing the rule show a lack of understanding of Utah law and the need for the amendment. The proposed amendment to this rule is definitely needed and based upon good and sound policy. The comments imply that this amendment some how changes the long-standing law of the State of Utah. Nothing could be further from the truth. I have now been trying civil cases arising from automobile accidents for over 21 years. During all that period of time, the issuance and disposition of a traffic citation has never been admissible. Previously, Utah Code Annotated Section 41-6-170 contained provisions making convictions of traffic violations inadmissible in civil actions. The statute was first adopted by the legislature in 1941 and has continuously been the law in Utah until 2005. Typically, prior to a civil jury trial involving an automobile accident, a motion in limine is filed to prevent the mentioning of the issuance or disposition of a traffic citation. I have personally filed probably over 100 of those and they have always been granted. Anyone with experience in trying civil cases arising from automobile accidents in the State of Utah should be familiar with this practice.
In 2005, the motor vehicle code was re-codified. The committee working on this project did not recommend the elimination of the provisions of Section 170. The Office of Legislative Research took this section out on their own believing it was not needed because it was redundant with other provisions of law and the inadmissibility of such evidence had been well established. The removal of Section 170 was never intended as a substantive change of the law. The amendment is to rectify a mistake not a conspiracy by insurance companies as suggested in comments.
There are good reasons for this long standing rule. In my experience, jurors and unfortunately even some judges, give undue weight to the opinions of police officers in issuing citations to determine negligence issues. The police officer is rarely an actual witness to the accident. He or she did not actually see what happened. During voir dire, it is common to ask potential jurors if they would give more weight to the testimony of a police officer simply because of the fact he/she is a police officer. Many times, I have had jurors admit that they would in fact give more weight to the testimony of a police officer even though they have never had an opportunity to hear any evidence let alone from the police officer or the version of other witnesses. I once tried a case in front of a justice court and was shocked at the conclusion of the trial when the judge ruled against my client on the grounds that my client was going too fast. When I pointed out to the court that there absolutely no evidence to support that conclusion, I was informed that the judge had run into the police officer prior to the trial and that the police officer (who did not testify at the trial and did not witness the accident) told the judge that he believed my client was exceeding the limit. Obviously, the judge erred in considering evidence beyond that presented at trial and upon an unsubstantiated opinion. Jurors are routinely instructed that a case must be decided only upon the evidence which they have heard in trial. (MUJI 2.4) However, it did emphasize to me the inherent bias in jurors (and sometimes judges) for shirking their obligation to decide the case on the evidence by simply deferring to the opinion of a police officer.
Jeffrey Colemere’s comments above are a perfect example of this type of problem. Utah law requires that jurors be told: “You are the exclusive judges of the credibility of the witnesses and the weight of the evidence.” It is their obligation to resolve factual disputes based on the evidence presented. Jurors are told during trials not to talk to others about the trial while the action is pending. It would be improper and likely reversable error for a juror to go home and get the opinion of a spouse and be influence thereby. Likewise, the opinion of an officer on giving a citation should not be determinative or even considered.
As Mr. Colemere points out: “It is common that litigants are pitted against each other without anything but their own credibility to break the tie. But, when one party can introduce evidence of the other’s conviction for the related traffic offense, that evidence significantly aids in the process of determining negligence.” Nothing could be further from the truth. Police officers have no special ability to determine which party is telling the truth and which party is not telling the truth. Yet, police officers often make decisions based upon which of the competing versions they believe. Under Utah law, the fact finder is not to defer to the opinion of the police officer or anyone else. Rather, the fact finder is the “exclusive” judge of the credibility of the witnesses. Unfortunately, jurors and judges alike will be tempted to take the easy way out and rather than fulfill their obligation as the fact finder, simply defer to the opinion of the police officer. This of course underminds the purpose of a fair trial. The police officer can certainly share his observations of relevant evidence seen at the scene but cannot opine on who was at fault. In fact, under current Utah law, no witnesses – even an accident reconstructionist who has carefully reviewed all the available evidence – can opine as to fault. As the Court of Appeals said in Davidson v. Prince, 813 P.2d 1225 (UT Ct. App. 1991):
The Advisory Committee notes [to Rule 704] make it clear that questions which would merely allow the witness to tell the jury what result to reach are not permitted. Nor is the rule intended to allow a witness to give legal conclusions. Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). Thus, [an expert] generally cannot give an opinion as to whether an individual was “negligent” because such an opinion would require a legal conclusion.
Through the years, I have found that police officers often make decisions without considering all of the evidence. I currently represent a client who is deaf. The police officer approached him and asked for his version of the accident. When the police officer determined that my client was deaf, he made absolutely no attempt to communicate with him or to get his version of the accident. This is a common occurrence. I routinely have parties tell me that the police officer never asked for their version of the accident. I even regularly have witnesses tell me that they were not interviewed or given an opportunity to tell what they saw. It is not uncommon in an accident to have a party that is unconscious or injured and is not in any position to make a statement. Even in those situations, I have seen police officers issue citations without bothering to get the other side of the story.
Police officers routinely give estimates of how fast vehicles are traveling (there are boxes for this on police reports) and yet when they are deposed, it is obvious they have absolutely no basis for those opinions. Through the years, I have seen a decline in reconstruction and thorough investigations in accidents by investigating officers. It is not uncommon today for investigating officers not to measure skid marks or secure other important evidence. I had one police officer tell me that they were specifically discouraged from doing thorough investigations.
I have also had police officers render decisions based upon a misunderstanding of the law. One police officer opined in a deposition that the shoulder was part of the roadway and that it is proper and appropriate to use the shoulders when making turns (even though Utah law says otherwise). Another officer opined that it was improper to turn left across a double yellow line (once again incorrectly). I had one police officer tell me many years ago that you could not get into the left turn lane until you were within 300 feet of making the actual turn. When I asked him the basis for that, he indicated that he was told that once by his sergeant.
The matter is further compounded by the fact that police officers routinely rely upon hearsay without attempting to verify the source to see if it is based upon first-hand knowledge. Frequently, in depositions, police officers will testify that they recall being told something at the scene but they are not sure who made the statement or the basis for the statement.
An additional problem is that police officers are not called upon to do what a fact finder is to do in a civil trial. Police officers determine if there has been a violation of statute. However, in a civil trial, we deal with issues of “negligence.” Police officers do not determine “negligence.” Most of the police officers that I have deposed or met with have readily admitted and acknowledged this. On rare occasions, when a police officer believes that he/she does determine issues of “negligence”, often they are unable to even define what “negligence” means. Under Utah law, a party can violate a statute and still not be negligent. (See MUJI 3.11) Furthermore, police officers are not in any position to apply other principles of law in a civil setting. They rarely know or care that the standard varies depending upon the risk (MUJI 3.6), that a person cannot unreasonably ignore obvious risks created by other persons even when they have the right-of-way (MUJI 3.12), the duty of imminent peril (MUJI 4.2), the responsibility of one causing the perilous situation (MUJI 4.3), the rescue doctrine (MUJI 4.4), etc.
These comments are not intended to bash police officers. They mostly perform admirably in performing a dangerous and difficult job for inadequate pay. I am simply saying it is not part of their job to determine liability in civil settings. Often, they have limited time and are more concerned (as they should be) about preventing the accident and injuries from becoming worse. The job of determining fault rests with judges and juries.
A fair trial requires that a litigant see and have the opportunity to confront the evidence against her. It requires that the decision be based upon the evidence. It requires an unbiased fact finder who will carefully sift through the evidence and weigh the evidence including the credibility of the witnesses to reach a reasoned opinion. Any fact finder who defers that obligation to the opinion of someone else, including a police officer, is not properly administering justice.
Traffic citations often involve small fines that are less than the standard hourly rate of attorneys in our community. It makes no sense for a lay person to hire an attorney and pay $175 per hour to fight a $40 ticket. Often times, it is less expensive and time consuming to simply forfeit bail than to appear. At the time the decision is made whether to fight the citation, the party often has no idea that a civil suit will come later and may involve claims of thousands of dollars. Some states have a one-year statute of limitations on personal injury actions based upon negligence. Most states allow an action to be brought within 2 or 3 years. Utah’s statute is four years. As a result, a lawsuit is often brought years after the citation has been disposed of.
The rule making convictions on traffic citations inadmissible was good law in 1941 and the 64 years thereafter. It is still good law and it should not have been changed by the Office of Legislative Research without any debate or consideration.

Kelly Walker makes an interesting observation. Under the language of the proposed rule, an actual CONVICTION would not be admissible but a mere CITATION apparently would be. Seen from that perspective, the rule seems almost backwards. A citation is just a charge and should not be admissible. (“Innocent until proven guilty.”) Likewise, forfeiting bail, pleas in abeyance, and maybe even pleading guilty should not be admissible. After all, where a traffic violation is concerned, people will do those things just to avoid the hassle of a lost day’s work and not because they are necessarily guilty. That being said, if someone actually fights the charge, goes to trial, loses on the merits and is CONVICTED by a fact finder–beyond a reasonable doubt–why shouldn’t the conviction be admissible where it would be more relevant than prejudicial, as in the hypothetical posited in my earlier comment?

The proper question is not whether convictions for routine traffic violations should be admissible — they typically are not and should not be admissible. The question is why do it with this poorly-constructed and all-encompassing rule when the law already provides the structure and the process?
STEP 1: What element is the conviction claimed to be relevant to? Usually the breach of a legal duty.
STEP 2: Why could a conviction be relevant? Res Judicata (issue preclusion).
STEP 3: Apply the law to the fact of a conviction.
EXAMPLE: Jon Defendant is convicted of going 90 in a 40. Jane Victim wants the conviction admitted to help prove Jon’s breach of a duty of care owed to her. Identical issue? No (malum prohibitum). On the merits? Maybe. Full and fair litigation? No. Identity of interest? Yes.
By applying the law to the claim of admissibility, we have found the answer to be that the conviction is not admissible. In Judge Orme’s example, maybe the answer is Yes to all four questions. We should encourage application of the law rather than a rule that leads to injustice.
Section 41-6-170 was not as broad as this rule and did not preclude all impeachment (171 did talk about “credibility” but the two concepts are distinct). If a witness who has a conviction for 90 in a 40 comes into court and testifies that he was going 40 because his attorney tells him the rule protects him from a perjury conviction, he deserves to be impeached with the conviction. A brick is not a wall. But the preclusion of all forms of impeachment in the proposed rule would only serve to encourage a wall of dishonesty.
This is no idle fear. True life example using Rule 411 (the model for rule 416). Why is insurance not admissible? Because the elements of negligence are duty, breach, causation and damages; whereas insurance is the ability to pay. Since ability to pay is not relevant to the elements, it is not admissible. But since we have the “helpful” rule 411, a tautology developed to replace reason. I had a case a few years ago where the defense counsel shed phony tears during his closing argument while discussing the large dollar value we were asking the nice old lady to pay. A judge who applies the rule of relevance as I explain it would allow the plaintiff full leeway to tell the jury that the nice old lady’s insurer is going to pay and the attorney whose fake tears might otherwise mislead it is a certified ———–. A judge who applies the tautology would order a mistrial costing the plaintiff thousands of dollars in expert witness fees and unreimbursed attorney hours, not to mention court time together with possible sanctions against the plaintiff’s attorney.
This rule will be similarly ruinous. Let’s agree to exclude most traffic violations depending on the application of longstanding rules of law and dump this rule.