Friday, November 28, 2008
In Need Of A Refresher: Seventh Circuit Confuses Recorded Recollection Rule With Refreshing Recollection Rule
The recent opinion of the Seventh Circuit in United States v. Tatum, 2008 WL 4964796 (7th Cir. 2008), is the latest illustration of a court confusing the recorded recollection exception to the rule against hearsay and the rule governing the use of writings to refresh a witness' recollection.
In Tatum, Exie Tatum was convicted of various drug and weapons charges. And part of the evidence used to convict him was the foundation testimony of Milwaukee Police Department (MPD) Officer Michael Capati, which the prosecution used to admit evidence of baggies of cocaine recovered from Tatum. Capati testified that he was the booking officer at the MPD's downtown administration building on the night of Tatum's arrest and that he was in charge of searching male prisoners and "bagging" property recovered from them.
Capati testified that he recovered from Tatum's left pajama pocket a clear plastic baggie, which he passed off to the detective or officer responsible for the arrest (it was later determined that the baggie contained cocaine). However, on cross-examination, Capati admitted that he reviewed another officer's report prior to testifying and, while he recalled that Tatum was wearing pajamas underneath his pants, he had no independent recollection of recovering the drugs from Tatum.
After Tatum was convicted, he appealed, claiming that the prosecution failed to lay a proper foundation for admission of the baggies of cocaine because, inter alia, Capati needed to review the other officer's report and had no independent recollection of recovering the drugs from Tatum. The Seventh Circuit, however, found that this argument was without merit because "the government was entitled to refresh his recollection during his testimony with the inventory sheet that he prepared at the time of the incident. See Fed.R.Evid. 803(5)."
While the Seventh Circuit's decision correct, its reasoning was faulty. Federal Rule of Evidence 803(5), the recorded recollection exception to the rule against hearsay, states that:
"A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."
The facts of Tatum clearly indicate that Capati "reviewed another officer's report," so Rule 803(5) could not have applied because presumably Capati didn't make or adopt the other officer's report. But, as is also clear from Tatum, the prosecution did not have Capati read the report into evidence, meaning that neither hearsay nor Rule 803(5) were in issue. Instead, it merely used the report to refresh his recollection and then independently testify, which is perfectly permissible under Federal Rule of Evidence 612.