What you should (or shouldn’t) say right after a car accident or other injury

Generally, this is not an issue that you should get too hung up on. If you have just been in a car accident or been injured, there are much more important things that you are likely focused on – mainly, getting yourself or others prompt medical attention. However, I will lay out some of the rules of evidence concerning spoken statements so you can become familiar with how your statements can be used in the future – especially at a trial.

The broad rule concerning spoken statements is that out-of-court statements (known as “hearsay”) are inadmissible at trial. As with most rules, there are exceptions. Probably the most relevant exception is for those statements made by another party to a lawsuit. So, for example, if you are in a car accident with another car, your statements (driver A) are admissible in a lawsuit against driver B, and vice versa. I underlined the word “party,” above, because this exception only applies to the actual parties to a lawsuit. So, if a passerby witnesses the accident or injury, that witness's statements may not fall into this exception and (generally) would not be admissible. The other thing to know about this exception to the rule against hearsay is that you can only use your opponent’s prior statements at trial, you cannot use your own prior statements.

So can anything you say (if you are a party to a lawsuit) be used by your opponent at the trial of your personal injury case? Not quite. Statements of your benevolence or sympathy relating to someone’s pain and suffering are not admissible to show your liability. Why not? Because “[c]ommon decency should not be penalized by treating such statements as admissions.” Denton v. Park Hotel, Inc., 343 Mass. 524, 528 (1962). Also, offers to pay (or actual payment) for someone’s medical expenses is not admissible to show your liability for an accident. This is because we want a person to act “as a decent citizen with proper humane sensibilities” without worrying that he/she is admitting fault for an accident or injury. See Lyons v. Levine, 352 Mass. 769, 769 (1967).

There are many more exceptions to the general rule against hearsay, and many more “exceptions to the exceptions.” With all of these evidentiary rules, is it better to just be silent after a car accident or after sustaining other personal injuries? Probably not. For one thing, your silence (in very limited circumstances) can be used as an admission, see Mass. G. Evid. § 801, but also, as a practical matter, it is not helpful to be silent. As I mentioned at the beginning of this post, there are more important things to do right after an accident than to worry whether your statements might be used against you later on. Hopefully, you’ve learned a little about some of the rules of evidence, but if you’re in a car accident (whether it is your fault or not), or if you've witnessed an accident, the best thing you can do right after it is to be helpful – call the police, call 911, help other people who might be injured.

If you are curious about the rules of evidence in Massachusetts, here is a link to the Massachusetts Guide to Evidence. It is an excellent resource which contains not only the laws of evidence in Massachusetts, but also notes and explanations of those laws.