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Univ. of South Carolina School of Law

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Friday, December 18, 2009

Not So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612

Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

The recent opinion of the Court of Appeals of Minnesota in State v. Mashek, 2009 WL 4573703 (Minn.App. 2009), reveals an important distinction between Minnesota Rule of Evidence 612 and its federal counterpart.

In MashekDellrae Mashek was convicted of of two counts of first-degree arson in connection with a fire at her deli and variety store.

On February 3, 2006, [Mashek] was interviewed by [Fire Marshal John] Steinbach and Officer Jeff Stadum. The interview was taped and a transcript was prepared. During trial, the prosecutor asked Steinbach and Officer Stadum about the statements [Mashek] made during the February 3 interview. When counsel for [Mashek] cross-examined Officer Stadum about the statements, the transcript of the February 3 interview was marked as an exhibit. The transcript was then used by Officer Stadum to refresh his memory during re-direct by the state.

After the close of the state's case, [Mashek] moved to introduce the recording of [Mashek]'s February 3 interview. [Mashek] claimed that it was not being offered for proof of the matter asserted, but "to show the context in which the statement was given." The prosecutor objected on the basis that her statements could not be admitted without [Mashek] being subject to cross-examination. The district court agreed and denied [Mashek]'s motion to admit the recording.

After Mashek was convicted, she appealed, but the Court of Appeals of Minnesota agreed with this ruling. The problem for Maskek is that Minnesota Rule of Evidence 612 merely provides that if a "writing" is used to refresh a witness' recollection,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and if otherwise admissible to introduce in evidence those portions which relate to the testimony of the witness (emphasis added).

The bolded portion of the Minnesota rule distinguishes it from its federal counterpart, which allows the adverse party to introduce the refreshing "writing," regardless of whether it is "otherwise admissible." I prefer the federal rule. Clearly, in Mashek, the prosecution used the transcript to refresh the recollection of Officer Stadum and allow him to present substantive testimony implicating Mashek. That being the case, why should Mashek be limited to using the transcript to cross-examine him? It seems that fairness would require that Mashek be allowed to use the transcript for the same purpose as the prosecution.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/12/612-106state-v-masheknot-reported-in-nw2d-2009-wl-4573703minnapp2009.html

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