EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, December 25, 2009

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5)12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

In SanchezAnthony Castillo Sanchez was convicted of murder in the first degree, rape in the first degree, and forcible sodomy based upon acts allegedly committed against Jewell Jean "Juli" Busken at her apartment after she had returned from exchanging Christmas gifts with her college friends.  At trial, evidence was presented

tending to show that shoe prints at the scene of the Busken murder were similar to a pair of Nike shoes owned by [Sanchez]. Investigators observed and photographed two pairs of shoe prints in the soil leading to where Juli Busken's body was found. One pair of shoe prints correlated to hiking boots worn by Ms. Busken. The other pair of shoe prints led down to the killing scene and then back toward the road. Police compared photographs of these prints to a variety of shoes and came to believe the soles were similar to the Nike Air Max 2. Photographs of the questioned shoe print were admitted at trial, along with inked imprints and acetate overlays of the Nike Air Max 2 shoes provided by the Nike Corporation. The State then presented testimony from [Sanchez]'s ex-girlfriend, Christin Sezter, who read to the jury an October 14, 1996, entry from her personal calendar indicating that she and [Sanchez] had purchased matching Nike shoes that day. The District Court also admitted the page from Ms. Setzer's calendar in evidence.

After he was convicted, Sanchez appealed, claiming, inter alia, that the prosecution failed to establish that Sezter had insufficient recollection before admitting her calendar entry as a recorded recollection. The Court of Criminal Appeals of Oklahoma disagreed, finding that

The witness testified that she remembered, independent of her calendar entry, the purchase of matching Nike shoes with [Sanchez] in 1996. On cross-examination, defense counsel elicited that police had shown the witness a pair of Nike Air Max 2 shoes and asked her if the shoes were similar to the ones bought by [Sanchez] in 1996. She testified the shoes shown to her by police were similar to [Sanchez]'s, but she could not positively say the shoes were the exact model purchased by [Sanchez]. While the evidence of [Sanchez]'s purchase of the shoes came from the witness' personal knowledge, it is apparent that the witness could not have remembered the specific date in October, 1996, on which the shoes were purchased over a decade earlier, without reference to the entry in her calendar. For this purpose, the witness' reading of the calendar entry was admissible under the hearsay exception for a past recollection recorded.

In other words, even though Sezter did not have significant lack of recollection, she had an insufficient recollection to testify fully and accurately, rendering the calendar note admissible as a recorded recollection. Of course, as the above language of the rule makes clear, this merely meant that the prosecution could have had Sezter read the note to the jury; the prosecution should not have been allowed to admit the note as an exhibit to the jury. The Court of Criminal Appeals thus acknowledged that the trial court erred in this regard but found that this error was harmless.



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A lot of similarities happened like the old one.

Posted by: ft worth | Jan 16, 2012 8:54:41 PM

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