EvidenceProf Blog

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

Wednesday, July 7, 2010

This Is A Recording: Supreme Court Of Minnesota Answers Several Questions Regarding Admissibility Of Audio Recordings Under Rule 803(5)

Like its federal counterpart, Minnesota 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 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.

In its recent opinion in State v. Stone, 2010 WL 2609430 (Minn. 2010), the Supreme Court of Minnesota answered two important questions regarding this recorded recollection rule and didn't have to answer a third.

In Stone,

D.B. live[d] in a house with A.J., his long-time girlfriend, their two minor children, and A.J.'s father, G.J. Shortly after midnight on April 23, 2007, D.B. heard loud knocking on the door of his house, followed by a request to use the telephone. In response, D.B. yelled that there was no telephone in the house, but the pounding increased and the door to the house began to give way. D.B. ran to wake G.J. while A.J. struggled to hold the door closed. When D.B. and G.J. returned, two shots were fired into the house; one shot struck G.J.

Immediately afterwards, the door caved in and two men entered the home. One man carried a gun and wore a bandana that covered his face, while the other, unmasked, man wore a stocking cap and carried a small, portable taser. The armed and masked man yelled at D.B. to "give it up." The unmasked man stood in the hallway with A.J. and G.J. A.J. then went into her bedroom and called the police. Meanwhile, the masked man led D.B. outside to D.B.'s car at gunpoint, where D.B. retrieved $450 in cash from the glove compartment. The masked man demanded more money from D.B., but D.B. turned out his pockets to show that he did not have any more money. The unmasked man also came outside and demanded that D.B. give them more money. When D.B. repeated that he did not have any more, the unmasked man shot him with the taser and the two men ran off into the woods.

When the police arrived in response to A.J.'s call, D.B. and A.J. identified the unmasked man, who they both knew by name, as Shane Scott Stone. G.J. made an audio-recorded statement to police, during which he described the details of the night's events. G.J. said in his statement that he got a good look at the unmasked man and provided a description that matched D.B.'s and A.J.'s identification of Stone.  Approximately four hours later, the police discovered Stone hiding in underbrush less than one mile away from the home of D.B. and A.J. Within roughly one week, D.B., A.J., and G.J. identified Stone's picture in separate photo line-ups.

Stone was later indicted on one count of first-degree burglary and one count of aiding and abetting first-degree aggravated robbery. At trial,

G.J....was unable to recognize Stone in court. G.J. provided a detailed description of the intruder, but when asked if he got a good look at the unmasked intruder's face, he said, "No, he just appeared briefly and left." When asked about whether he had identified someone during a photo line-up, G.J. initially stated that he had not. But, G.J. recalled picking out a photograph after his memory was refreshed by looking at a document that he saw during the photo line-up. After G.J. testified that he did not get a good look at the assailant, the State attempted to refresh G.J.'s recollection by showing G.J. statements that he made during his police interview. The State subsequently asked G.J. if reviewing the statements refreshed his recollection as to whether G.J. had gotten a good look at the face of the unmasked man, to which G.J. responded, "I can't say for sure right now."

G.J. also had difficulty remembering details of the physical description of the unmasked intruder that he provided to the police, even after he was shown portions of a transcript of his audio-recorded statement. Following defense cross-examination, the State asked G.J. if he felt he had "sufficient recollection to testify fully and accurately about what happened that night" to which G.J. responded, "That's all I remember right now." G.J. agreed, however, that his audio-recorded statement to the police was "an accurate reproduction of the questions [that he was] asked and the answers that [he gave]." Over defense objection, the district court allowed the State to play the original audio recording of G.J.'s police interview as a recorded recollection under Minn. R. Evid. 803(5). The court relied on testimony about G.J.'s alcoholism, the State's failed attempts to refresh his recollection, and G.J.'s testimony that he had an insufficient recollection of the events.

The jury acquitted Stone of the burglary charge but found him guilty of the aiding and abetting charged. He thereafter appealed, claiming that the trial court made three errors under Minnesota Rule of Evidence 803(5) in playing the audio recording.

First, Stone argued "that G.J.'s audio-recorded statement [wa]s not a 'memorandum or record' because the plain language of Rule 803(5) only encompasses written documents." The Supreme Court of Minnesota, however, found that Stone failed to preserve the issue for appellate review. Even if the court had addressed this issue, I think that it would have found against Stone based upon precedent such as a recent opinion of the Court of Appeals of North Carolina, which I posted about here. For what it's worth, though, I'm not sure that I agree with these opinion because the last sentence of Rule 803(5) provides that "the memorandum or record may be read into evidence..." Even if an audio recording is a "memorandum" or "record," how can it be read into evidence? And, of course, the recording in Stone was played for the jury, not read into evidence.

But this argument is of no moment because Stone failed to preserve the issue for appeal. Stone did, however, preserve his argument that "the State failed to prove that G.J. had an insufficient recollection to testify fully and accurately at trial because G.J. recalled several details of the crime when he testified and he never claimed to be unable to recall the events surrounding the robbery." The court, however, was easily able to dispatch with this argument, noting that it is clear from the plain language of Rule 803(5) and precedent from across the country that the proponent of a recorded recollection merely needs to show that the memory of the witness was insufficient to testify fully and accurately, not that the witness was unable to recall any details of the event at issue. The court found that the record clearly established that G.J. has insufficient memory even though he clearly recalled some details about the robbery, meaning that the prosecution satisfied its burden in this regard.

Third, Stone argued that the prosecution failed to comply with the requirement that the audio recording be "made or adopted by the witness" because the police officer who recorded the statement did not testify. The Supreme Court of Minnesota noted that some courts had required testimony both by the eyewitness and the police officer recording the statement, but it concluded:

We think the multi-party situation described in the foregoing cases, in which both the recording police officer and the witness must testify regarding the accuracy of the record and the transcription, is limited to written transcripts and does not apply when a party is seeking to admit the actual audio recording itself....

We hold that for purposes of Minn. R. Evid. 803(5), G.J. “made” the audio recording when the event was fresh in his memory. Although G.J. is not the one who operated the machine that recorded the statement, there is no dispute that it is his voice or his statement reflecting the crime as he observed it. As the court of appeals said, it is undisputed that the audio recording accurately reflects what G.J. stated during the police interview....Here, because we hold that G.J. “made” the audio recording for purposes of Rule 803(5), we do not follow the line of cases that address the “adopted” standard in the context of multi-party situations, where the witness makes an oral statement and another party translates that statement into writing.

I agree with this point by the court, but I still question whether Rule 803(5) should apply to audio recordings.



State v. Stone
--- N.W.2d ----, 2010 WL 2609430



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I agree that the language of 803(5) arguably contemplate a written memorandum or record as opposed to a tape recorded statement. By requiring the recorded recollection to be read to, instead of being read by the jury, the prior statement comes into evidence in the same manner as if the witness had been able to testify from the stand: orally. Thus, the theory goes, the recorded recollection doesn't assume greater weight because the jury was able to hold, touch, and feel the written document. They just heard it. Obviously, a tape recorded statement comes to the jury orally. They don't hold, touch, or feel an exhibit; it is as if the witness was testifying orally. Query, however, whether the tape recorded statement made at an earlier time and played for the jury doesn't carry the same enhanced weight that the written exhibit would, theoretically, enjoy? Certainly, a transcript, properly authenticated and read by someone other than the witness would put the tape recorded statement on the same level as other 803(5) statements. But should we jump through those hoops when the substitute evidence, the 803(5) recorded statement, can be received by the jury in the same manner as the rest of the in-court witness testimony? It seems to me that if the goal of the last clause of 803(5) is an effort to keep some sort of relative parity among percipient witness accounts of an event, playing the tape would be the way to go. While reducing the tape to a transcript and reading the transcript would create parity between written 803(5) statements and tape recorded 803(5) statements, I think the goal of the "no exhibit" provision is to keep the recorded recollection on par with the manner in which the jury receives other witness testimony and not an effort to limit recorded recollection to written records only. Interesting case and interesting issue. Thanks for posting on it.

Posted by: Prof. W. A. Woodruff | Jul 12, 2010 5:43:43 AM

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