EvidenceProf Blog

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

Sunday, April 4, 2010

Play It Again, Sam: Eleventh Circuit Shows Reluctance To Reverse Under Second Sentence Of Rule 803(5)

Federal 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 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.

If a trial court improperly allows for the admission of an important memo or record under this Rule, it is pretty clear that such a ruling can form the basis for a reversal on appeal. But what if the trial court properly allows for the admission of an important memo or record under this Rule but improperly allows the memo or record to be received as an exhibit? My reading of the recent opinion in United States v. Jones, 2010 WL 1254351 (11th Cir. 2010), is that the Eleventh Circuit would almost never reverse based upon such an error.

In Jones, Deon Monroe Jones was convicted of knowing possession of a firearm and ammunition by a convicted felon, knowing possession of a firearm and ammunition by a controlled substances user, knowing possession of ammunition by a convicted felon, and knowing possession of ammunition by a controlled substances user. At trial, the prosecution established the following:

In the early morning of June 1, 2004, David Buskirk...was shot with a .38 caliber bullet outside his home in Savannah, Georgia. Detective Robert Von Lowenfeldt...led the investigation into Mr. Buskirk's shooting, and, over the course of his investigation, identified Mr. Jones as a prime suspect. On June 18, 2004, Detective Von Lowenfeldt helped execute a warrant for Mr. Jones's arrest, for violation of his parole. During a search of Mr. Jones's bedroom at his mother's house, the police found twelve .38 caliber rounds and four .44 caliber rounds.

On June 23, 2004, Detective Von Lowenfeldt conducted a videotaped interview of sixteen-year-old Kelly Bigham....In their conversation, Ms. Bigham informed the detective that she had sold a .38 revolver to Mr. Jones. She described how she and Mr. Jones drove to a nice area of town, where Mr. Jones shot a white man. After the interview, Ms. Bigham directed Detective Von Lowenfeldt to the street on which Mr. Buskirk lived, and she demonstrated how Mr. Jones got out of the car, fired at the man, and got back into the car.

At trial, the prosecution played the videotaped interview to the jury pursuant to Federal Rule of Evidence 803(5) after Bingham testified that "she lacked 'clear and distinct recollection in [her] response to the question[s]' regarding the subject matter of her interview with Detective Von Lowenfeldt." 

During deliberation, the jury sent the court a note, requesting a second viewing of the video. Over Mr. Jones's objection, the district court allowed the video to be played for the jury a second time....The district court denied Mr. Jones's request that Ms. Bigham's cross-examination be read to the jury as well.    

After he was convicted, Jones appealed, claiming, inter alia, that by allowing for the video to be played for the jury a second time, the court in effect allowed for the video to be received as an exhibit. Jones claimed that this error was grounds for reversal in and of itself and that the trial court also denied him his confrontation rights under the Sixth Amendment by replaying the video without Bingham's cross-examination being heard again. The Eleventh Circuit disagreed, finding that

Though Ms. Bigham's testimony was important to the government's case, the second presentation of the video provided only cumulative evidence. The jury watched the entire filmed interview during trial. Also, while [another prosecution witness]'s testimony may have been contradictory, he did corroborate Ms. Bigham's interview as to the key elements of Counts One and Two-that Mr. Jones possessed a .38 revolver and shot a man with .38 caliber ammunition. Given this additional evidence, even absent a second viewing of the video, the government's case against Mr. Jones was strong. The record also demonstrates that the district court's refusal to read Ms. Bigham's cross-examination testimony did not affect the outcome of the case. Forty minutes after the second viewing, the jury sent the judge a note stating that "[t]he video did not change any positions."

My response: Of course the second presentation of the video was cumulative. But the whole point of the second sentence in Federal Rule of Evidence 803(5) is that the jury should only get one chance to hear a recorded recollection, with any cumulative presentation being prejudicial. And the fact that the trial court allowed the cumulative presentation of the video without the cumulative presentation of its accompanying cross-examination only underscores this prejudice.

Now, the Eleventh Circuit did note that the jury indicated that "[t]he video did not change any positions," but the court's opinion also indicates that the jurors requested the video on the first day of deliberations (the opinion doesn't indicate how long deliberations lasted). How firm could the jurors' positions have been on the first day of deliberations. And if all jurors thought that Jones was guilty before seeing the video, why didn't they just enter a guilty verdict at that point?



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