Sunday, November 21, 2010
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.
So, when does a witness have "insufficient recollection" for Rule 803(5) purposes? Must the witness have no present knowledge of the pertinent information, or is it enough if the witness has insufficient recollection to testify fully and accurately? As the recent opinion of the Court of Appeals of Indiana in Horton v. State, 2010 WL 4634609 (Ind.App. 2010), makes clear, Indiana courts used to apply the former standard but now apply the latter standard.
In Horton, Randy Horton was convicted of six counts of child molesting as Class A felonies and three counts of child molesting as Class C felonies. The alleged victim was R.M., the child of Horton's girlfriend, and the Madison County Department of Child Services videotaped an interview with R.M., in which she provided a detailed explanation of the type, extent, and duration of sexual molestation by Horton.
At trial, R.M. was able to testify about several acts of sexual molestation that Horton committed against her. She, however, was unable to remember one specific act of molestation Horton allegedly committed against her, prompting the prosecution to play the videotaped interview for the jury pursuant to Indiana Rule of Evidence 803(5).
After he was convicted, Horton appealed, claiming, inter alia, the prosecution failed to satisfy the "insufficient recollection requirement of Rule 803(5) because R.M. "had a complete and accurate recollection of the events," but "[s]he was unable to remember and testify concerning allegations" that Horton told R.M. to insert her fist into his anus."
In rejecting this argument, the Court of Appeals of Indiana noted that
In Smith v. State, 719 N.E.2d 1289 (Ind.Ct.App.1999), we concluded that "[e]arlier Indiana law required that the witness be shown to have no present knowledge of the pertinent information. Under the new [recorded recollection] rule, a witness need not be shown to be completely without present memory; he need only be shown to have insufficient recollection to...testify fully and accurately."