By Natalie D’Antonio and Michael Berman 

 

Picture this—your client survived a horrific motorcycle accident involving a commercial truck. You obtain the police report for the collision and discover that the county police department has placed the truck at fault after an extensive accident reconstruction investigation. Now, you not only have all of the evidence from the scene of the collision including photographs and interviews, but you also have a potential expert witness for trial because the police officer has been trained and certified in accident reconstruction. 

A commonly overlooked source of evidence in civil cases is the underlying criminal investigation and prosecution. Evidence that is typically obtained or generated by the State in the context of criminal investigations or prosecution can be bountiful to include witness statements, police interviews, body camera video, 911 calls, bail review transcripts, criminal hearing and sentencing transcripts, true test of copies of any resulting convictions, lab reports, police reports, Fifth Amendment invocations, trial testimony, jail calls, and more. Evidence collected by governmental entities for the purpose of criminal prosecution can be extremely useful in a multitude of civil cases and is generally reasonably accessible to attorneys.   

 

A Step-By-Step Guide to Obtaining State-Generated Evidence 

It is best to take a linear and systematic approach in obtaining all state-generated evidence in your civil case to ensure that you do not miss anything. Attorneys should first consider obtaining the police case file and any state’s attorney case file when handling civil cases with underling criminal investigations. These files can be filled with helpful information including witness contact information, police or investigative reports and findings, charging documents, interviews, 911 calls, photographs, videos, lab reports, and more. Maryland Public Information Act (MPIA) requests may help get the ball rolling on this, but subpoenas are typically the most effective way of obtaining full copies of these kinds of materials.  

Even if a criminal investigation has not taken place, it is best for attorneys to keep a list of all potential state-generated evidence and to mentally go through the list at the beginning of each civil case. When going through this list, think globally about all evidence that may have been generated in relation to important locations, events, or individuals in your case. Do not limit your mental inventory to evidence that pertains only to the underlying facts of your claim. Ask yourself: was there a 911 call in this case or have there been other 911 calls to this location before? Have the parties or witnesses ever been charged, interviewed, or named in the context of any police investigation at any time even if it was not in direct relation to my case? Was a police officer called to the scene and if so, is there body camera video?  

If there are underlying criminal charges in your civil case, be sure to run a Maryland Judiciary Case Search and order all commissioner hearings, bail reviews, motions hearings, plea hearing, trial and sentencing transcripts from the court. Audio transcripts of hearings can be extremely helpful in discovering more information about a criminal defendant, learning the details of the underlying claim to support civil causes of action, or even hearing what the defendant has to say about the pending charges him or herself.  

If a criminal case resulted in a finding of guilt, obtain true test copies of any resulting convictions from the court. Remember, if you are dealing with an underlying minor traffic offense, a defendant’s payment of a preset fine will likely not be admissible in a civil trial even though it results in a “guilty.” However, a guilty plea to the underlying offense in open court is typically admissible in the motor tort trial. See Briggeman v. Albert, 322 Md. 133, 139-40 (1991). Whether it was a pre-payment of a fine or a guilty plea on the record it will typically be denoted on Maryland Judiciary Case Search. If it is the latter, you should request the hearing transcript immediately.  

Where a witness or party is serving a period of incarceration, civil attorneys should also consider ordering audio of the inmate’s jail calls. All inmate calls (except those with their legal counsel) are recorded. Vinelink.com is a victim notification network with information that can be extremely helpful for attorneys. Attorneys can use Vinelink.com to obtain inmate SID or ID numbers and to determine where an inmate is currently being housed or where they are serving a sentence. Obtaining this information will allow an attorney to subpoena every call made by an incarcerated defendant. Depending on who the defendant calls, jail calls can provide compelling evidence and insight into the defendant and those he or she speaks with.  

Police body-worn camera (BWC), or dash camera footage can also be extremely valuable in civil cases. In 2021 Maryland passed the Maryland Police Accountability Act, which requires the use of BWC for all law enforcement agencies by July 1, 2025. Most Maryland police agencies have already instituted BWC requirements for their officers. BWC footage can be used as a compelling depiction of a crash scene. It can provide context and portray the tone or tenor of a situation when verbal or written accounts fall flat. Footage from the scene can also put credibility disputes to rest where the defendant takes responsibility for the crash in discussions with police officers before changing their story in their recorded statement to the insurance company.  

911 and Computer Aided Dispatch (CAD) notes should also not be overlooked as those, along with 911 calls can be powerful evidence. The calls can contain admissions from the defendant, reveal independent eyewitnesses, or provide eerie and captivating recordings of the events that were going on at the time. 911 calls also have a greater chance of serving as admissible hearsay at trial where they accurately reflect contemporaneous statements and exclamations as events unfold.  

 

Law Enforcement as Witnesses 

Civil attorneys should also make efforts to track down the police officers who were assigned to conduct the underlying criminal investigation to obtain all police interview information and to discuss the officer’s perceptions and thoughts after an investigation has ended. Law enforcement officers can make compelling witnesses both at deposition and at trial. They are often experienced in providing testimony in court and may be better able to articulate or describe a scene or setting than a typical lay witness. Additionally, police officers can provide non-biased testimony as to specific occurrences or prior statements.  

There are times where responding police officers can be qualified as experts on a particular subject or topic and can be designated as testifying experts in a civil case. The use of law enforcement officers as experts in civil cases usually arises within the context of collision reconstruction or drug or alcohol recognition in an intoxicated driver. However, police expertise can extend far beyond accident reconstruction or drug recognition. This can include experts in topics such as arson, computer and cell phone forensics, human trafficking and sex trade, thermal imaging, cell tower triangulation and tracking devices, and much more. If a civil attorney chooses to utilize a police officer as an expert at trial, it is necessary to properly designate them as a testifying expert as required under the Maryland Rules instead of relying on an officer’s ability to testify as a hybrid witness.  

 

Ensuring that Evidence is Admissible  

It is imperative that all state-generated evidence that is collected by a civil attorney is admissible at trial. The trick to this is procuring evidence in a form or manner that ensures its authenticity and admissibility at trial or working to establish admissibility early on during the discovery phase of your civil case. When ordering or requesting any manner of evidence from a government agency, always order certified copies of the materials and provide notice to opposing counsel pursuant to Md. R. Evid. 5-902(12). Ordering records, documents, videos, 911 calls or any other similar materials as certified business records ensures that the evidence will be self-authenticated at trial. Also remember that even where evidence is self-authenticating, an admitting attorney must be ready to provide the trial court with a valid hearsay exception to ensure that the statements within a call, video, or document are admissible.  

 

Conclusion 

Evidence collected by governmental entities for the purpose of criminal prosecution can be incredibly valuable to civil attorneys. Many times, evidence from a criminal investigation can provide a high caliber of credible information and can also better demonstrate the severity or gravity of the events or occurrences at issue. Obtaining state-generated evidence is also generally less costly than hiring private investigators or employing private experts. Civil attorneys should always pause to conduct a mental inquiry into whether any kind of state-generated evidence may exist in their case and then make reasonable efforts to obtain it before forging ahead with civil discovery.  

 

 

 

Biographies 

Natalie D’Antonio is an associate attorney at Bekman, Marder, Hopper, Malarkey & Perlin, LLC. Natalie’s practice focuses on medical malpractice, personal injury, and representing survivors of sexual abuse. She is admitted to practice in Maryland, Pennsylvania, and the U.S. District Court of Maryland 

 

Michael Berman is an associate attorney at Alpert Schreyer, LLC. Michael’s practice focuses on personal injury and criminal defense. He is admitted to practice in Maryland and the U.S. District Court of Maryland.