EvidenceProf Blog

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

Saturday, May 1, 2010

Is It Your Recollection?: California Appellate Court Deems Improper Admission Of Recorded Recollection Harmless Error

Like Federal Rule of Evidence 803(5)California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

As the above language makes, clear "recorded recollections" are only admissible if the "witness has insufficient present recollection to enable him to testify fully and accurately. But, as the recent opinion of the Court of Appeal, Second District, Division 1, California, in People v. Juarez, 2010 WL 1645814 (Cal.App. 2 Dist. 2010), makes clear, when a trial court allows for the admission of a recorded recollection despite the witness having sufficient present recollection, an appellate court will inevitably find harmless error.

In Juarez, a jury convicted Gilbert Juarez of committing a lewd act upon a child under 14 years of age, with enhancements for infliction of great bodily injury, substantial sexual conduct with the victim, and personal infliction of great bodily injury on the victim. The alleged victim was Erin M., and, about a month after the alleged lewd act, she spoke with Mary Ann Lague, a sexual assault nurse examiner. Erin M. recounted the alleged lew act to Lague, who recorded the narrative on a form.

At Juarez's trial, Erin M. testified regarding the alleged lewd act, and Lague, inter alia, read the form she had completed during her interview of Erin M. The trial court deemed the form admissible as a recorded recollection under California Evidence Code Section 1237

After he was convicted, Juarez appealed, claiming, inter alia, that the form was inadmissible as a recorded recollection because it was made about a month after the alleged act and was thus not made by Lague while the act recorded in the writing was fresh in Erin M.'s memory. The court, though, did not have to reach this issue because it was clear from Erin M.'s testimony that she had sufficient present recollection to enable her to testify fully and accurately. The appellate court thus found that the form was improperly admitted.

The court, however, found that

The admission of her statements to Lague under section 1237 was harmless error, given Erin M.'s detailed trial testimony....The case did not hinge on Lague's testimony, and it is not reasonably probable that the exclusion of Lague's testimony would have resulted in Juarez's acquittal.

Indeed, it is difficult to see how an appellate court could ever find anything other than harmless error in such a case. If the witness has sufficient present recollection, her testimony should mirror the recorded recollection, rending the latter merely cumulative evidence.



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Posted by: ian | Oct 12, 2010 9:25:52 PM

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