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Univ. of South Carolina School of Law

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Monday, May 10, 2010

Broken Record: Supreme Court Of Tennessee Finds Statement Improperly Admitted As Exhibit Under Recorded Recollection Rule

Like its federal counterpart, Tennessee 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's 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.

In its recent opinion in State v. Hatcher, 2010 WL 1780049 (Tenn. 2010), the Supreme Court of Tennessee found that the trial court erred in allowing the prosecution to admit an alleged recorded recollection as an exhibit under Tennessee Rule of Evidence 803(5). It should have simply found that the statement did not qualify as a recorded recollection.

In Hatcher, Shawn Hatcher was convicted of the first degree premeditated murder of Marcel Mackey, the alternative count of first degree felony murder, and the attempted first degree premeditated murders of Anitra Flowers and Randall White/Moore. Hatcher's sister, Sabrina,

who was eighteen years old at the time of trial, also testified. She stated that she spoke with Shawn over the phone on the night of the shooting. He called her, she said, because she "had asked him for some money that day and he told [her] after he got through taking care of some business he was going to give it to [her]." When the prosecution asked her about the kind of business he was going to take care of, she stated that she did not know.

The prosecution then referred her to [a] statement she had given to the police several hours after the shootings. She acknowledged the statement, that she was fifteen years old at the time she gave it, and stated that she told the truth when she gave the statement. She also acknowledged that her memory of the events was better at the time she spoke with the police than it was at trial. The prosecutor gave her the statement to read, directing her to a particular segment in which she reported that Shawn had told her over the phone that he and Chris were going to kill Red. She read to herself the portion to which she was directed and then stated, "I don't remember saying this." She added, "I didn't tell them this” and “this statement right here is not right." The trial court subsequently allowed the prosecution to admit Sabrina's statement as an exhibit to her testimony.

After Hatcher was convicted, he appealed, claiming, inter alia, that this statement should have been excluded as inadmissible hearsay. The government countered that the statement qualified for admission as a recorded recollection under Tennessee Rule of Evidence 803(5). The Supreme Court of Tennessee disagreed, finding that even if the statement qualified as a recorded recollection it could not have been introduced as an exhibit by the prosecution.

While I agree with the court, I also think that it simply could have found that the statement did not qualify as a recorded recollection. As noted, above, for a statement to qualify as a recorded recollection, it must be shown "to reflect [the declarant's] knowledge correctly." This can be shown "either through the witness's testimony that the witness recalls making an accurate statement or through the witness's testimony that the witness would not have made the statement unless correct." Mark D. Robins, Evidence at the Electronic Frontier:  Introducing E-Mail at Trial in Commercial Litigation, 29 Rutgers Computer & Tech. L.J. 219, 297 (2003).

Clearly, this was not done in Hatcher. Instead, Sabrina clearly indicated that the statement was "not right" and that she "didn't tell this" to the officer who prepared the statement. Therefore, the court just as easily could have found that the statement did not qualify as a recorded recollection.

(And despite finding error, the court deemed the error harmless)

-CM 

http://lawprofessors.typepad.com/evidenceprof/2010/05/8035--state-v-hatcher----sw3d------2010-wl-1780049tenn2010.html

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