Skip to main content

Search

Automobile Fraud: 10.8.1.8 Acts That Are Intertwined with Main Transaction; Multiple Claims; Conspiracies

Another basis for admitting evidence of other acts is that they are necessary to complete the story of the main transaction or are inextricably intertwined with it.364 These are not “other” acts.365 For example, evidence of prior sales of the same vehicle is admissible.366 Evidence of other acts may also be admissible if claims regarding several transactions are joined in the same suit, although the court may decide to sever the various claim

Automobile Fraud: 10.8.1.9 Admissibility Under RICO and UDAP Statutes

Evidence of prior bad acts is also relevant to claims under state and federal racketeer influenced corrupt organizations (RICO) statutes. The federal RICO statute and almost all state RICO statutes require a showing of a pattern of racketeering activity.370 This being a necessary element of the claim, the consumer not only can, but must introduce pattern evidence.

Automobile Fraud: 10.8.1.10 Impeachment

Evidence of some criminal convictions can be used to impeach the credibility of a witness.375 The type of conviction that can be used for impeachment varies, but typically a crime involving dishonesty is admissible, and in some cases any felony conviction is admissible.376

Automobile Fraud: 10.8.1.11 Practice Tips for Admission of Other Acts Evidence

In presenting evidence of other acts, the advocate should keep in mind that, as a practical matter, no judge wants to try twenty-five cases when it is possible to try just one.380 If a pattern is to be proven, sound judgment should be applied to draw the line on the number of instances of similar conduct that will be shown, so that the point will be made thoroughly, but also as quickly as possible.

Automobile Fraud: 10.8.2 Evidence of Other Consumer Complaints

Sometimes evidence exists that consumers have filed complaints with government agencies or the Better Business Bureaus concerning the defendant, but it may be difficult to prove the facts underlying those consumer complaints. For example, there may be lists of complaints made to the state attorney general or a Better Business Bureau, but little underlying documentation. Ways to avoid hearsay problems with this evidence are:

Automobile Fraud: 10.8.3 Evidence of Wholesaler’s or Auction Company’s Bad Reputation

Evidence of the bad reputation of an auction company or wholesaler is relevant to show that the dealer who sold the car to the consumer was or should have been on notice of likely problems, and should have investigated the vehicle’s history.389 This evidence is not hearsay, because it is not introduced to prove the truth of the matter asserted (for example, that in fact the auctions or wholesalers sold large numbers of rollbacks).390 Rather, it shows that the purchasing dealer was on notice

Automobile Fraud: 10.8.4 Evidence of Defendant’s Settlement or Settlement Offers in This or Other Cases

Many states follow a rule similar to Federal Rule of Evidence 408 that evidence of compromise or an offer to compromise is not admissible on liability issues. Evidence that a defendant has settled, or offered to settle, this or other disputes is not admissible to prove that the defendant engaged in the challenged practices.394 Nor may a defendant introduce a settlement offer to negate fraudulent intent, show a lack of damages, or defend against punitive damages.395

Automobile Fraud: 10.8.5 Admissibility of Evidence of Other Defendants’ Settlements; “Empty Chair” Effect

A consumer who reaches a settlement with some but not all defendants may be concerned about the effect on the jury if the judge allows admission of evidence of the settlement. If the plaintiff has already recovered a substantial sum from another defendant, the jury may feel that the plaintiff’s case no longer has to be taken seriously. If the plaintiff settled with other defendants for a nominal amount, it may devalue the case in the jury’s eyes.

Automobile Fraud: 10.8.6 Parol Evidence Rule and Merger Clauses

Defendants may object to testimony about oral misrepresentations, or written representations that are not in the parties’ contract, on the ground of the parol evidence rule. In addition, the defendant may point to a “merger clause” in the sales agreement to the effect that the seller is not responsible for the oral representations of its sales personnel and that the contract supersedes any such representations.

Automobile Fraud: 10.8.7.1 Previous and Subsequent Owners

A vehicle’s previous owners can offer important testimony about the vehicle’s history. In rollback cases, previous owners can testify to the mileage at the time of transfer and that the odometer was functioning accurately at that time. In salvage cases, they can describe whether the insurance company declared the vehicle a total insurance loss, or the size of the insurance settlement. In a lemon laundering case, the prior owner can detail the nature of the car’s mechanical problems.

Automobile Fraud: 10.8.7.2 Testimony and Statements of Adverse Parties and Persons Associated with Adverse Parties

Under Federal Rule of Evidence 611 and comparable state rules, a party may call adverse parties, or witnesses identified with an adverse party, and question them by leading questions. This approach can be effective in establishing basic facts about the transaction, and in presenting admissions that the witness has made in deposition. An adverse party is sometimes a good choice as the first witness to present in the plaintiff’s case. The consumer’s attorney should call adverse parties as witnesses only if they have been deposed, however.

Automobile Fraud: 10.8.7.4 Questioned Document Examiners

Forgery of documents is a common feature in title-washing and other fraudulent schemes.427 The fact that the consumer’s signature has been forged can sometimes be proven by the consumer’s or other non-expert’s testimony.428 However, expert testimony is often necessary. A forensic document examiner can make all the difference in proving or disproving the authenticity of a document, but there are significant pitfalls that must be avoided.

Automobile Fraud: 10.8.7.5 Other Expert Witnesses

An expert witness is useful for establishing information which a lay jury could not understand on its own. Some attorneys help the trier of fact understand the transaction by starting the trial with an expert witness who has examined the transaction and can explain the economic and personal dynamics of the fraud. This testimony helps the trier of fact see the victim’s weaknesses and vulnerabilities in the context of the fraud.

Automobile Fraud: 10.8.7.7 Witnesses Who Have Received Use Immunity for Previous Testimony

As there are potential criminal penalties for many types of automobile fraud, it is not uncommon for a civil case to be preceded by a criminal prosecution. If a witness has been granted use immunity for testimony in a criminal prosecution, that testimony can still be used against that witness in a later civil case.470 The immunized testimony can be admitted even if the civil case seeks penalties under state or federal odometer statutes or state UDAP statutes, because such penalties are civil and remedial rather than criminal.

Automobile Fraud: 10.8.7.8 Defendants’ Assertion of Fifth Amendment Privilege

As many types of automobile fraud carry criminal penalties, defendants and witnesses may wish to assert their Fifth Amendment right not to incriminate themselves. The privilege against self-incrimination applies to civil cases.471 In contrast to criminal cases, however, in a civil case there is no constitutional bar against drawing an adverse inference from a witness’s invocation of the privilege against self-incrimination.472

Automobile Fraud: 10.8.8.2 Summary Title History Reports

A summary title history report from a commercial service that summarizes title information it compiles from many jurisdictions may be admissible under the jurisdiction’s business record rule, but only after considerable proof of the accuracy of the underlying data and the manner of collecting, compiling, and reporting it.500 It might also be possible to introduce the report after presenting expert testimony that it is a “market quotation, tabulation, list, directory, or other published compilation” that is generally used and relied upon by

Automobile Fraud: 10.8.8.4 Simplifying Admission of Documentary Evidence

Out-of-state business records or statements from out-of-state witnesses are frequently essential to establishing high mileage or original wreck damage on vehicles. Even if witnesses are in-state, they may be reluctant to come to court to testify, and deposing them adds to the expense of the case.

Automobile Fraud: 10.9.1 Preparing for Jury Trial

Most attorneys who handle automobile fraud cases agree that, given a choice, the case is best presented to a jury rather than a judge or arbitrator.521 While judges and arbitrators have sometimes awarded substantial damages in automobile fraud cases, juries are more likely to empathize with the victim of automobile fraud. There is also general agreement on the importance of keeping the case simple and the themes clear. Technical or trivial claims should be avoided.

Automobile Fraud: 10.9.2 Motions in Limine

Experienced trial attorneys emphasize the importance of thinking carefully before trial about evidence and arguments that the opposing side may offer during trial. Much of this evidence and argument may be improper, unduly prejudicial, or confusing. Severe prejudice can often be caused by the mere mention of such matter in front of the jury, regardless of whether an objection to the matter is sustained.

Automobile Fraud: 10.9.3 Voir Dire

In jurisdictions where the attorneys conduct voir dire, the attorney should ask questions that require all the jurors to respond, and that encourage the jurors to respond often. The goal is to engage the jury and get an active exchange going.