Secondhand, unsubstantiated statements are not admissible as evidence, even if they are within official reports that are exempt from the rules against hearsay, a Colorado Court of Appeals panel ruled on Thursday.

The case involved an anonymous witness’s statement to a law enforcement officer investigating a traffic accident, which turned out to be a key detail corroborating one party’s version of events.

In November 2015, Celena Esther Jean Bernache was driving toward Fountain when Gary Brown struck her vehicle with his. Brown claimed he had a medical emergency while driving that prompted the collision. A corporal with the Fountain Police Department who responded to the accident spoke to a witness who left the scene before providing their identifying information.

The witness said that right before the accident, Brown “‘[s]tiffen[ed] up’ and lean[ed] towards the right like he was having a heart attack.” The corporal included that statement in his report. 

When Bernache sued Brown, she attempted to have the witness’s statement excluded. The El Paso County District Court judge overruled her, citing that police records were exempt from a rule against hearsay evidence.

The jury ultimately sided with Brown.

In examining the court’s evidentiary ruling, the three-member appellate panel noted that Colorado law allows certain public records as evidence if the source of information is trustworthy. However, writing for the court, Judge Terry Fox explained that individual statements within such a report can be deemed hearsay.

“Considering that the witness made the statement after the accident and that [the corporal] recorded no other observations about the witness’s demeanor, there is simply not enough evidence in the record for us to conclude that the witness statement is an excited utterance,” Fox wrote, referring to one of the admissible categories of hearsay evidence.

The court looked to the actions of the General Assembly from decades in the past, determining that the legislature chiefly allowed state reports as evidence to avoid having government employees appear in person to offer testimony. In doing so, Fox wrote, the General Assembly never intended that the contents of such reports could go unchallenged.

“Thus, we do not believe the legislature, in reducing the burden on public record custodians and other state officials, intended to allow admission of otherwise inadmissible hearsay statements merely because they appear in an official state record,” she concluded.

The panel ordered a new trial because the anonymous witness’s statement was the strongest evidence for Brown’s claim that a medical emergency contributed to the accident. This was especially apparent because Brown had no memory of how the accident occurred, and multiple jurors referred to the witness’s words when asking the trooper about his actions.

Bernache also appealed on the grounds that one of the jurors knew the Fountain corporal and told Bernache’s lawyers after the trial that she took his testimony seriously because “she knew how he thought and worked.” Because the appellate panel ordered a new trial, it did not address the propriety of the juror’s participation in the case.

The case is Bernache v. Brown.