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Univ. of South Carolina School of Law

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Saturday, July 17, 2010

Is It Your Recollection?: Florida Court Varies From Prior Florida Precedent In Recorded Recollection Ruling

Like Federal Rule of Evidence 803(5), Section 90.803(5) of the Florida Statutes 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 by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

So, for a recorded recollection to be admissible under this rule, does the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement?  According to the recent opinion of the District Court of Appeal of Florida, Fifth District, in its recent opinion in Polite v. State, 2010 WL 2787457 (Fla.App. 5 Dist. 2010), the answer is "no," despite prior Florida precedent.

In Polite, Darius Polite was convicted of burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. Falisa Levine was one of the alleged victims of these crimes, and, one hour after the subject crimes, she gave a sworn written statement to police, detailing the crimes and identifying Polite by name as one of the robbers.

At trial, Polite "testified that three men came to her house, kicked the door open, and put a gun to her daughter's face. Beyond this, [she] testified that she could not remember any more details at the time of trial." The prosecution thereafter had Levine read her sworn statement to the jury." On cross-examination, Levine testified that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person."  

After he was convicted, Polite appealed, claiming, inter alia, that Levine's statement was inadmissible hearsay." And, according to polite, the statement did not qualify for admission under Section 90.803(5) of the Florida Statutes because, for a recorded recollection to be admissible under this rule, the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement.

The District Court of Appeal of Florida, Fifth District, found that Polite failed to preserve this issue for appellate review but found that he would have been unsuccessful even if he had. The court did first acknowledge that

Polite correctly points out that Florida case law, as it stands currently, does not allow a written statement to qualify as a past recollection recorded unless the declarant lays the foundation for its admission with testimony at trial that he or she recorded the statement when the described events were fresh in his or her mind, and attests to the accuracy of the statement (either by testifying that he or she made an accurate record of the fact or event or that he or she is confident that the facts would not have been written unless they were true). E.g., Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010) (holding that where witness was unable, or unwilling, to attest to the accuracy of the taped conversation, the state was not able to show it could introduce the same as a past recollection recorded); Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004) (holding audio-tape recordings were inadmissible as past recollection recorded where witnesses did not testify that the recordings accurately reflected their memories of events when made); Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003) (holding tape recorded statement given to police shortly after criminal incident was inadmissible under section 90.803(5) when witness did not remember its contents and did not testify that it correctly reflected her knowledge or that she tried to be truthful at the time of the making of the statement).

But the court disagreed with this precedent, finding that these cases were

contrary to the plain language of the statute and rule. Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness' mind, and that it was accurate. This is the approach taken by several cases applying the companion provision in the federal rules relating to past recollection recorded- Federal Rule of Evidence 803(5)-or identical state evidence rules.

Applying this approach to the case before it, the court concluded that

the victim identified the written statement as the statement she gave to police on the day of the crime, approximately one hour after the events took place, and testified that she told the police what happened when they came to her house. Given the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.

I agree with this approach. Like Federal Rule of Evidence 803, Section 90.803 of the Florida Statutes sets forth hearsay exceptions in which the availability of the declarant is immaterial. In other words, hearsay can be admissible under these exceptions, even if the declarant is unavailable. And if the declarant can be unavailable, then clearly the approach previously taken by the Florida courts is wrong.

That said, I am not sure about the court's specific conclusion. I understand what the court was saying in the last block quote above. But what about Levine's admission that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person." It seems to me that this testimony easily could have been enough to deem her alleged recorded recollection inadmissible.

-CM  

http://lawprofessors.typepad.com/evidenceprof/2010/07/8035--polite-v-state----so3d------2010-wl-2787457flaapp-5-dist2010.html

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