EvidenceProf Blog

Like A Bad Habit: New Jersey Court Uses Reputation Evidence Rule In Eviction Appeal

New Jersey Rule of Evidence 406 provides that

(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.

(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.

Meanwhile, N.J.S.A. 2A:18-61.1(j) provides that

No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes...except upon establishment of one of the following grounds as good cause:

j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

So, what does the definition of "habit" in New Jersey Rule of Evidence 406 tell us about the definition of "habitually" under N.J.S.A. 2A:18-61.1(j)? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in Matthew G. Carter Apartments v. Richardson, 2010 WL 4739934 (N.J.Super.A.D. 2010), the answer is "a great deal."

In Richardson,

In January 2009, plaintiff served defendant with a "notice to cease," alleging she had paid her rent late in February and July 2008, and in January 2009. The notice to cease further provided that "[u]nder New Jersey law, if [defendant] pa[id][her] rent late two more times...[plaintiff] m[ight] terminate [her] tenancy and evict [her] for habitual late payment for [sic] rent." The notice to cease further advised defendant that plaintiff would continue to accept her rent even if paid late, but that it "d[id] not go along with the fact that [she][was] paying it late." This non-waiver of plaintiff's eviction rights was more fully set forth in the last paragraph of the notice to cease.

Defendant tendered her rent in a timely fashion every month from February to May 2009. When she paid her June rent on June 18, plaintiff served her with a "1st Violation" of the notice to cease on June 26, reiterating that it was accepting the late rent but not waiving any rights to evict defendant in the future....On July 1, plaintiff tendered a new lease to defendant, which all parties executed on July 6. This was the first “new lease” defendant received since the inception of her tenancy in 1995. Defendant paid her August rent on August 12, two days after the grace period provided in the new lease. Plaintiff served defendant with a "2nd violation" of the notice to cease on August 14, again reserving its right to evict defendant.

On September 9, plaintiff served defendant with a notice to quit and demand for possession, terminating defendant's tenancy effective November 1....On November 3, plaintiff filed its complaint seeking possession pursuant to N.J.S .A. 2A:18-61.1(j).

The judge concluded that the plaintiff had established the statutory grounds for eviction and entered the judgment for possession. In reversing, the Superior Court of New Jersey, Appellate Division, held that

"Habitual" is defined as "customary, usual." Black's Law Dictionary 640 (5th ed.1979). Our Rules of Evidence also provide guidance as to the plain meaning of "habit." N.J.R.E. 406(b) permits the proof of "habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice." "A habit...is the person's regular practice of responding to a particular kind of situation with a specific type of conduct."...As used in N.J.S.A. 2A:18-61.1(j), the Court has said that whether conduct is "'habitual' is a function of time and circumstances."...

Applying these basic principles, we conclude that plaintiff failed to demonstrate that defendant had, after receipt of the notice to cease, "habitually" paid her rent in an untimely fashion. The notice to cease was served on defendant on or about January 21, 2009. Thereafter, she paid her rent in a timely fashion in nine of the next eleven months prior to the December 15, 2009 trial. Defendant paid her rent late in June (eight days after the grace period), and in August (two days after the grace period), i.e., she was late by a total of ten days during the eleven-month period. The statute “requires a continuing course of conduct by the tenant over a period of time...."...We cannot conclude on these facts that after the notice to cease was served, defendant was "habitually" late in her rental payments.

-CM

habut rent

Matthew G. Carter Apartments v. Richardson
--- A.3d ----, 2010 WL 4739934
N.J.Super.A.D.,2010.

http://www.judiciary.state.nj.us/opinions/a1992-09.pdf

Confusion Causin' Pollution: Court Of Appeals Of Indiana Finds Rule 407 Applies In Insurance Coverage Dispute Cases

Like its federal counterpart, Indiana Rule of Evidence 407 provides that

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rule 407 is typically associated with personal injury and other negligence cases, but does it also apply in insurance coverage dispute cases? According to the recent opinion of the Court of Appeals of Indiana in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 2010 WL 4723188 (Ind.App. 2010), the answer is "yes."

In Flexdar,

Flexdar, Inc., manufactured rubber stamps and printing plates at its factory in Indianapolis. Flexdar's machinery employed the chemical solvent trichloroethylene (TCE), which leaked from the factory premises and contaminated subsoil and groundwater. The Indiana Department of Environmental Management ordered Flexdar to investigate the contamination and informed Flexdar that it could be liable for the costs of cleanup. Flexdar requested defense and indemnification from its commercial general liability insurer, State Automobile Mutual Insurance Company, and State Auto filed [an] action seeking declaration that it owed no coverage.

The basis for the State Auto's action was an exclusion in Flexdar's policy, which indicated that, inter alia,

This insurance does not apply to:

(1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Both parties moved for summary judgment, and, in support of its motion, Flexdar

tendered to the trial court, among other things, a new policy endorsement form that State Auto drafted in 2004. The new form specifically identified TCE and other substances as examples of "pollutants" for purposes of State Auto's pollution exclusion. Flexdar introduced the new endorsement form to show that its own policy was ambiguous and that State Auto recognized the need to clarify it by naming TCE as a pollutant. The trial court struck the evidence as irrelevant.

Nonetheless, the trial court still entered summary judgment in favor of Flexdar, prompting State Auto's appeal. And while the Court of Appeals of Indiana affirmed the trial court's entry of summary judgment in favor of Flexdar, it agreed with the trial court that the new policy endorsement was inadmissible.

Specifically, the court found that this evidence was inadmissible under Rule 407. The court acknowledged that "Rule 407 is typically associated with personal injury and other negligence cases." According to the court, though, "Rule 407 is worded broadly,...and courts have applied it in many other contexts including intentional tort and contract claims." Moreover, the court noted that in cases such as Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir.2007), "authorities have read Rule 407 to exclude evidence of subsequent policy revisions in insurance coverage disputes."

The court then

agree[d] with Pastor and conclude[d] that Rule 407 may bar evidence of subsequent policy revisions offered to resolve ambiguity in an executed insurance contract.

Here, Flexdar and State Auto executed several CGL policies subject to a pollution exclusion. The parties now disagree as to whether the term "pollutant" in the exclusion is ambiguous or contemplates a leakage of TCE. State Auto apparently revised its standard policy forms in 2004 to specify TCE as a pollutant. In line with the foregoing, we conclude that any modifications that State Auto made to its policy forms in 2004 constitute subsequent remedial clarifications which are not admissible to interpret Flexdar's insurance contract and prove State Auto's liability.

-CM

That's Unfair: Second Circuit Finds Sodomy Character Evidence Not Unfairly Prejudicial

Federal Rule of Evidence 414(a) provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Rule 413, like its counterparts Rules 414 and 415, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault and child molestation cases. Of course, evidence sought to be admitted under Rule 414(a) is still subject to Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

But when is evidence of past sexual crimes "unfairly" prejudicial, presenting a problem under Rule 403, and when is it merely "highly" prejudicial? That was the question addressed by the recent opinion of the Second Circuit in United States v. Davis, 2010 WL 4366481 (2nd Cir. 2010). And I would say that the court got it wrong.

In Davis, William Davis was convicted of one count of sexual exploitation of a minor, two counts relating to child pornography, and one count of being a felon in possession of ammunition. At trial, the district court allowed the prosecution to present evidence, pursuant to Federal Rule of Evidence 414(a), of Davis' 1991 conviction for sodomy by forcible compulsion (The conviction was redacted by stipulation to reflect only the fact of conviction upon a guilty plea to a sodomy offense involving a child below the age of 14 and not the fact that the child was Davis' daughter).

After he was convicted, Davis appealed, claiming, inter alia, that the district court should have deemed evidence of the conviction inadmissible under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The Second Circuit disagreed, finding that

We previously considered the interplay between Rules 414 and 403 in United States v. Larson, 112 F.3d 600, 604-05 (2d Cir.1997). We noted that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice....Although the 1991 conviction in the pending case is 19 years old, the convictions in Larson were between 16 and 20 years old. There can be no doubt that admission of a prior conviction for child molestation carries a high risk of prejudice for any defendant, especially one charged with sexual exploitation of a minor. However, as the Seventh Circuit has observed, such evidence may be "highly prejudicial" but not necessarily "unfairly prejudicial." United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006) (emphasis in original)....

The calibration necessary to distinguish "highly" prejudicial from "unfairly" prejudicial will often be difficult to determine. In this case, the District Judge demonstrated his concern for the issue by...encouraging the stipulation that redacted from the record the explosive fact that the victim of the 1991 conviction was the Defendant's daughter. Mindful of the congressional expectations concerning Rule 414, an expectation normally to be honored unless application of the rule would offend the Due Process Clause, we cannot say that the District Court's allowable discretion in the admission of evidence was exceeded in this case.

So, what was the Seventh Circuit's point in Sebolt, and does it apply to Davis? Well, in Sebolt, Philip Sebolt was charged with using his computer to commit various federal crimes involving child pornography. And, at trial, the prosecution presented evidence that he had previously molested a relative. The prosecution presented evidence of this prior act to prove Sebolt's motive for committing the crime charged, and the district court admitted the evidence along with a limiting instruction which told the jury not to use the evidence as propensity character evidence.

After Sebolt was convicted, he appealed, claiming that the district court should have deemed the evidence inadmissible because it was highly prejudicial. According to the court,

Sebolt correctly state[d] that evidence of child molestation is highly prejudicial. However it is not unfairly prejudicial in Sebolt's case. A limiting instruction was given regarding other bad acts evidence, and the government did not overstep its bounds in this regard.

So, how does this apply to Davis? The answer is that it doesn't. Sebolt says that when character evidence is used to prove a permissible purpose under Rule 404(b) and not as propensity character evidence, the evidence is not unfairly prejudicial when a limiting instruction is issued. When, however, character evidence is used under Rule 414 (or Rule 413 or Rule 415), it is used as propensity character evidence. Now, the Second Circuit may be correct "that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice." That is not to say, though that such evidence lacks the danger of unfair prejudice. It does, which is exactly why it would otherwise be excluded under Rule 404.

-CM

Double Your Hearsay: SDNY Finds Customer Complaints In Business Records Inadmissible In Action Against MTA

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The rationale behind the Rule is that employees of a business have an interest in recording events accurately to ensure that the business functions smoothly. Conversely, customers of that business have no similar interest, so customer complaints are not admissible under this Rule. Instead, they are hearsay within hearsay and inadmissible unless they meet an independent exception to the rule against hearsay as is clear from the recent opinion of the United States District Court for the Southern District of New York in Rivera v. Metropolitan Transit Authority, 2010 WL 4545579 (S.D.N.Y. 2010).

In Rivera, two Hispanic males brought an action under 42 U.S.C. § 1981 and 1983, among others, against the Metropolitan Transportation Authority ("MTA"), a number of MTA police officers, and others for, among other things, false arrest and excessive use of force. The plaintiffs' complaint alleged that they were singled out for this alleged treatment by reason of their race and ethnicity.

The defendants moved for partial summary judgment on, inter alia, the plaintiffs § 1981 claim. According to the court, the plaintiffs' memorandum made only a few assertions in support of the notion that any of the defendants intended to discriminate on the basis of race, including that

• "Defendant Sullivan has numerous complaints against him for racial slurs ... (Statement of Facts J Supra & Exh. EE)." [and]

• "The vast majority of civilians who filed complaints against Defendant MTAPD Officers and alleged excessive force were non-Caucasian or had names that indicate that they are ethnically diverse. ( Id.)"

And, according to the court,

The first two of plaintiffs' assertions rely on their Exhibit EE, which consists of documents relating to civilian complaints and investigations thereof made with respect to three of the individual defendants. Even taking the complaints at face value, they (1) reveal no substantiated complaints-not "numerous complaints"-against Sullivan for the use of a racial or ethnic slur, and (2) do not indicate the race or names of the complainants. None is a sworn statement by a complainant testifying to anything that any of the subjects of the complaints did or said. Inasmuch as the documents contain MTA accounts of what complainants said, they presumably are admissible under Fed.R.Evid. 801(d)(2) and/or 803(6), at least against the MTA, for the fact that the complainants made the allegations reported. They are not, however, admissible for the truth of what the complainants said. Plaintiffs' Exhibit EE therefore is insufficient on either ground to raise a genuine issue of material fact with respect to the allegation that any of the individual defendants acted with discriminatory intent.

In other words, the customer complaints were hearsay within hearsay under Federal Rule of Evidence 805 because they were statements by non-MTA employees and thus inadmissible to prove the truth of the matter asserted unless they met an independent exception to the rule against hearsay.

-CM

The Invention Of Lie Detection: Dr. William Marston And The Creation Of The Lie Detector Test, Frye, & Wonder Woman

I recently came across an interesting piece of information: Wonder Woman's creator, Dr. William Moulton Marston, created not only her Lasso of Truth, but also the systolic blood pressure test, i.e., the predecessor to the modern lie detector (polygraph) test. The systolic blood pressure test should be familiar to those who have taken Evidence in law school because it was the subject of the landmark expert evidence opinion, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Apparently, Marston was both a graduate psychology and law student at Harvard in 1915 when he began working on his blood pressure approach to deception (Marston eventually got his law degree in 1918). He got the idea for a lie detection machine based upon blood pressure after his wife, Elizabeth, suggested to him that "When she got mad or excited, her blood pressure seemed to climb." Marston eventually created his systolic blood pressure test, and,"[a]ccording to Marston..., he and his colleagues tested a total of 100 criminal cases in Boston criminal court, and his systolic blood pressure test led to correct determinations in 97 of them...." Dr. Marston soon thereafter either coined the phrase "lie detector" himself or adopted it from a reporter to whom he described the wonders of his device. See Vincent V. Vigluicci, Note, Calculating Credibility:  State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42 AKRON L. REV. 319, 321 (2009).

Thereafter,

After World War I, Marston pursued an academic career, and he appeared as an expert witness in the now famous 1923 Frye case, in which the defense unsuccessfully attempted to introduce his expert testimony as to the innocence of the defendant on the basis of his systolic blood pressure test....Frye was accused of murder in the District of Columbia and, after first denying all knowledge of the event, confessed and provided police with correct details of the killing. A few days later, Frye recanted the confession, claiming that he admitted to the crime because he had been promised a share of the reward for his own conviction. Marston then gave Frye his deception test in a D.C. jail and found his claim of innocence to be entirely truthful. When Marston was introduced as an expert witness at trial, the presiding judge excluded the evidence on the grounds that the test had been administered in jail 10 days before Frye testified in court and that it was irrelevant to the veracity of his testimony. Frye was convicted of murder....The case was appealed on the ground that the trial judge erroneously excluded Marston’s testimony. On appeal, the circuit court argued that the judge was correct in excluding the evidence....

Specifically, according to the court in Frye,

Just when a scientific principle or discovery crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-organized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

This Frye test, which focuses upon whether a technique of technology has general acceptance in the relevant expert field, thereafter ruled the roost in courts across the country for the next seven decades and explains why lie detector evidence has been deemed inadmissible everywhere except New Mexico: Dr. Marston's test results were deemed inadmissible in Frye. And while there were some indications that courts' attitudes toward lie detector evidence would change after the Supreme Court's landmark 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), that door was effectively shut by the Supreme Court's opinion five years later in United States v. Scheffer, 523 U.S. 303 (1998).

So, if there were no Dr. Marston, what would lie detectors look like today? Presumably, Frye would not have taken a lie detector test and there would have been no Frye test. So, would some other opinion have taken hold in the absence of Frye and been applied by courts across the country? Or would different jurisdictions have created different rules? And would there have been the uniform rejection of lie detector test results? We'll never know.

What we do know is that there wouldn't have been a Wonder Woman without Dr. Marston.

In 1940, when he was serving as an educational consultant for Detective Comics, Inc. (now known as DC Comics), Marston asked why there was not a female hero. Max Gaines, then head of DC Comics, was intrigued by the concept and told Marston that he could create a female comic book hero—a "Wonder Woman"—which he did, using a pen name that combined his middle name with Gaines's: Charles Moulton.

Wonder Woman first appeared in a nine-page center spread in the December-January 1941 issue of All Star Comics. Then, in January 1942, she debuted in Sensation Comics number one, with a full version of her origin and her first adventure, armed with her bulletproof bracelets, magic lasso, and her Amazonian training. For our purposes, Wonder Woman’s magic lasso is her most notable possession and a link to the original and modern myth of the invincibility of the polygraph:

The magic lasso was supposedly forged from the Magic Girdle of Aphrodite, which Wonder Woman’s mother was bequeathed by the Goddess. Hephastateus borrowed the belt, removed links from it, and that is where the magic lasso came from. It was unbreakable, infinitely stretchable, and could make all who are encircled in it tell the truth.

-CM

Car And Driver: Court Of Appeals Of Texas Lays Out Corroborating Circumstances Test For Statements Against Interest

Texas Rule of Evidence 803(24) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

So, when do the corroborating circumstances clearly indicate the trustworthiness of the statement? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Amarillo, in Rodriguez v. State, 2010 WL 4628580 (Tex.App.-Amarillo 2010).

In Rodriguez, Jose Angel Rodriguez, was convicted by a jury of evading arrest or detention. Rodriguez claimed that while he was in a car that pulled over in response to police cruiser but then drove up; he claimed, though, that he was merely a passenger, with Eric Mendoza being the driver. At trial, Rodriguez attempted to support this claim by calling

his great-grandmother, Juanita Rodriguez, to testify about a telephone conversation she had with Mendoza two months earlier. Before she could testify concerning Mendoza's statements, the State objected to the testimony as hearsay. In response to the State's objection, [Jose] contended the statement was admissible as a statement against interest. Outside the presence of the jury, Rodriguez testified that she had a telephone conversation with Mendoza, who had called to speak to Jose. Rodriguez stated: "He [Mendoza] told me that he was driving. My son was asleep beside him, but he got scared and jumped to the back when he was stopped."

The trial court, however, precluded this testimony, finding that while Mendoza's alleged statement would have been a statement against interest, there were not corroborating circumstances clearly indicating the trustworthiness of the statement. In reviewing this issue on appeal, the Court of Appeals of Texas, Amarillo, found that the Court of Criminal Appeals of Texas has identified a number of factors that are relevant to this inquiry:

(1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts.

In applying these factors to the case before it, the court found that

Mendoza's statement was against his penal interest and, with Appellant's upcoming trial, it is not unreasonable to assume he anticipated that his statement would be disclosed to authorities or the trial court. In addition, Mendoza was in a position where he could have committed the crime and his guilt would have necessarily precluded Appellant's guilt. Furthermore, Appellant's own trial testimony corroborates Mendoza's statement.

On the other hand, Mendoza had no relationship, familial or otherwise, with Appellant's great-grandmother and his statement lacked spontaneity because it was purportedly made in response to a query from Appellant's great-grandmother regarding Mendoza's reluctance to testify at her great-grandson's upcoming trial. Furthermore, the trustworthiness of the statement was directly attacked by Officer Taylor's testimony that he had seen Appellant exit and enter his car on the driver's side at a convenience store shortly before the offense occurred. In addition, the trustworthiness of the statement was controverted by Deputy Valdez's testimony that, as he approached the car at the second stop, he observed Appellant slide over from the driver's seat to the front passenger seat and Mendoza move from the front passenger seat to the backseat. Furthermore, that Appellant had been driving the car was consistent with his ownership interest in the vehicle. In addition, Appellant's testimony that he was asleep for two hours immediately prior to the second stop was contradicted by Officer Taylor's testimony that less than two hours prior to the second stop, he observed the car empty and later observed Appellant exiting and entering the driver's side of the car at a convenience store.

-CM

Do You Remember?: Court Of Appeals Of Indiana Defines "Insufficient Recollection" Under Rule 803(5)

Like its federal counterpart, Indiana Rule of Evidence 803(5) provides that

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."

-CM