Evidence of the Defendant's Prior Accidents and/or Criminal Record

Suppose liability is contested in your auto accident case and you find out that the defendant has an abysmal driving record and even a lengthy criminal record. He’s been in at least 3 accidents in the last 2 years and has a DUI conviction. The first thing that comes to mind is probably how to use this against him in your case.

As a general rule, a defendant’s prior criminal convictions, auto accident or other “bad acts” are not directly admissible as evidence of negligence in an auto accident case. This means that plaintiffs in an auto accident cases cannot present evidence of the defendant’s driving record or prior criminal convictions as “proof” that the defendant must have been at-fault for the current accident.

This does NOT mean, however, that a defendant’s prior criminal record or driving record has no relevance or involvement in an auto accident lawsuit. It also does not mean that plaintiffs are not entitled to obtain this information in discovery. In fact, questions about prior accidents and criminal history are standard interrogatory questions that every lawyer handling a car accident case should ask.

So why bother asking about prior crimes and accidents if they are not usually relevant or admissible? The reason you ask about prior crimes and accidents is because this information can used to impeach the defendant’s credibility under certain circumstances. There are 2 ways that this can be used to impeach the defendant in an auto accident case: (1) defendant lies about his prior record in discovery responses; and (2) contradicting defendant’s testimony on cross examination.

(1) Defendant Lies in Discovery Responses
Interrogatories to a defendant in an auto accident case should ALWAYS include a request for defendant to disclose “all prior motor vehicle accidents” they have been involved in. Another standard question should ask them to disclose all prior traffic law violations (and other criminal convictions).

These are strictly bait questions. You are not asking because you actually want to know this information. It should be easy enough to find these facts out through investigation. You ask these questions because defendants very frequently lie in response to them. If the defendant lies about their driving or criminal record in interrogatory response it makes these facts relevant and admissible. The plaintiff gets to present the driving and criminal record as evidence to impeach the defendant for lying in the interrogatory response.

(2) Contradicting Defendant’s Testimony
The other way that a defendant’s prior bad acts can be brought in as evidence in an accident case is when the defendant offers false or contradictory testimony at trial. For example, if the defendant testifies at trial that he has a “clean” driving record or claims that he has never been convicted of a crime, then the plaintiff gets to present evidence to contradict this. In this circumstance the defendant’s prior criminal convictions and his driving record would become relevant and admissible for purposes of impeachment.

Another standard interrogatory question to a defendant in an auto accident case should be whether they have ever had an auto insurance policy cancelled. The logic and strategy behind asking about prior insurance cancellations is the same as asking about a defendant’s driving and criminal record. A prior insurance cancellation might not be relevant and admissible as direct proof of negligence, but if you can bait the defendant into lying in his response it becomes fair game.

When you ask about the defendant’s prior bad acts (e.g., driving record, criminal history, insurance cancellations, etc.) you should expect some level of pushback from defense counsel. Defense attorneys will frequently object to discovery requests for this information on the grounds that it is not relevant and admissible. Don’t let this scare you away from getting these questions answered. Just because they ask for information that might not be admissible, it does not mean that the defendant can refuse to answer.

• Go back to the car accident interrogatories you were just reading
• Get examples of depositions, interrogatories, requests for admission and other discovery in personal injury cases