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Can I Use Witness Statements From An Accident At The Trial Of A Personal Injury Case?

The gathering and preservation of information about an accident is a vital role of an effective personal injury attorney. Rarely is an attorney at the scene of the event as it unfolds, so it is absolutely essential that the names, addresses, emails and phone numbers of all witnesses to any accident-  whether that's a car accident, a slip or fall type of accident, a workplace accident causing an injury, or any other type of event that could potentially result in litigation- be recorded, documented and made available subsequently. Those individuals may be interviewed, formally or informally, asked to sign affidavits or statements, and, potentially, be placed under subpoena for trial of the personal injury claim.

The Rules of Evidence require more than simply showing up on the day of trial of the personal injury claim with a statement, setting forth a favorable version of the accident, signed by a witness who is not there.

A statement- which can be nothing more than a handwritten note signed by the individual, or a formal transcript or affidavit containing their story- is not, in and of itself, typically admissible as substantive evidence at trial. The same rule applies even if that witness gives a prior statement under oath that is transcribed. The writing, whatever the form, itself is generally not going to be received in evidence, absent a few exceptions.

Live, in person testimony from the witness is needed at trial. 

The information provided by a witness, of course, is vital in any liability investigation of the claim. As the question posed by the title suggests, testimony from a disinterested, neutral witness might be pivotal at trial. The story provided by the witnesses, i.e. their version of how the accident happened, what they saw and perceived, is the key information. It is the manner in which that story is presented that is important. A statement given or adopted by an absent witness is inadmissible hearsay. Their live, in-person testimony, however, is always going to be received in as evidence of what happened during the accident. During the trial of a personal injury case, if the witness’s story is to be told, they must appear and give live in court testimony and be subject to cross-examination regarding the veracity and accuracy of their tale. That’s not to say the there is not an important role for witness statements. If there is a prior statement, that writing can be used to assist the witness in recalling what they might have since forgotten.  If the witness’s story changes, that statement can be used to highlight those inconsistencies, and changed story, for the trier of fact. The writing or the statement itself though is typically not admissible. There may be some exceptions if the witness is deceased or absent from the jurisdiction, but, these are rare instances, and involve legal complexities best handled by an attorney.  

     -This Article was updated by Eric Kirk on 11/25/20. 

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