Broken Record? Court Of Appeals Of North Carolina Finds Tape Recorded Statements Can Be Admissible Under Rule 803(5)

Like its federal counterpart, North Carolina Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.

It seems clear that this Rule covers something written by a witness, but does it also cover a tape recorded statement by a witness? That was the question recently presented to the Court of Appeals of North Carolina in State v. Wilson, 2009 1373205 (N.C.App. 2009).

In Wilson, David Reed Wilson was convicted of first-degree murder in large part based upon the testimony of Raymond Morgan. According to Wilson, however, that testimony was inconsistent with statements that Morgan made to Tecolia Daughtridge. The problem for Wilson at trial, however, was that when he called Daughtridge, she claimed that she had no recollection of any statements Morgan made to her regarding the murder. 

At this point, Wilson sought to introduce a tape recorded statement that Daughtridge made to Detective Terry Green, in which she recounted what Morgan had told her. When Wilson's attorney asked Daughtride whether she remembered making the statement to Detective Green, she testified that he did not recall making a statement to police. Thereafter, when Daughtridge was asked about whether she fabricated any statement made to the police, she responded:

I didn't say I made anything up and you're not going to get me to say I made nothing up. My mental state and my physical health as far as my head, I'm liable to say anything. So, I'm not really-me sitting up here, anything I say is not going to be credible because really my mental state, I'm liable to say anything....

I'm liable to say anything. Truthfully. I'm a patient at Mental Health. I'm liable to say anything.

Over Wilson's objection, the trial judge ruled that this recording was inadmissible, and Wilson was subsequently convicted. He later appealed to the Court of Appeals of North Carolina, claiming, inter alia, that the recording was admissible as a recorded recollection under North Carolina Rule of Evidence 803(5).

Initially, that court noted that it had found no North Carolina precedent interpreting the language "memorandum or record" in N.C.R. Evid. 803(5) as encompassing a tape recorded statement. The court, however, found no North Carolina precedent interpreting "memorandum or record" as not encompassing a tape recorded statement. Instead, it cited Brandis & Broun on North Carolina Evidence § 224 at 201 (6th ed.2004) for the proposition that

Though most of the cases speak of a “writing,” it seems that a tape or similar recording should equally qualify. Indeed, if the witness dictated the recording and testifies that she then knew her dictation to be accurate and identified her voice, the probability of trustworthiness is higher than in the situations [involving written recordings by a third party].

The court then concluded: We agree and hold that an audio recording can be admissible as a “record” under Rule 803(5). 

Wilson, however, had another problem. As noted, Rule 803(5) only allows for the admission of a recorded recollection "shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly." And as noted, Daughtridge claimed that she did not recall making a statement to police and indicated that if she made a statement to police, it wasn't likely to be reliable. Thus, the court found that Daughtridge's tape recorded statement was not admissible and affirmed his conviction.

Ignoring this final part of the court's opinion, however, we are still left with the question of whether tape recorded statements should generally qualify as recorded recollections under Rule 803(5). I generally agree with the Court of Appeals of North Carolina on this point, but with one qualification. Like its federal counterpart, North Carolina Rule of Evidence 803(5) has a last sentence that the court did not mention. This sentence provides: "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."

In other words, if Daughtridge had written what Morgan had told her, and that writing qualified as a recorded recollection, the jury would not have seen the writing; instead, Daughtridge would have simply read it to the jury. I think that the same principle should have applied if Daughtridge's tape recorded statement qualified as a recorded recollection. In this case, the recording should not have been played for the jury; instead, a transcript of the recording should have been made, with Daughtride reading the transcript to the jury.

-CM

d