Monday, March 21, 2011
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his 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.
And, like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to refresh the recollection of a forgetful witness with a writing. So, let's say that a witness made a statement to the police but then refuses to attest to its accuracy while testifying at trial. Can the prosecution read portions of the statement out loud and ask the witness whether she made the statements recorded in the statement consistent with either Rule 612 or Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Martin, 2011 WL 899553 (Ohio App. 9 Dist. 2011), such a procedure is improper under Rule 612 and possibly improper (and I would argue definitely improper) under Rule 803(5).
In Martin, the facts were as stated above, with Thomas Martin, Jr. being the defendant charged with domestic violence and Heather Teeter being the alleged victim who refused to vouch for the accuracy of her statement. Instead, Teeter responded to each "question" by the prosecution with an answer similar to "[t]hat's what the statement says." The trial court allowed the prosecution to use the procedure layed out in the introduction, and this action formed the partial basis for Martin's appeal.
The Court of Appeals of Ohio found that this procedure clearly did not constitute proper refreshing of recollection under Ohio Rule of Evidence 612 because "While '[a] party may refresh the recollection of a witness under Evid.R. 612 by showing him or her a prior statement[, ] * * * a party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury.'"
The court then found that even if the reading of the statement was improper under Ohio Rule of Evidence 803(5), any error in doing so was harmless. But the way I see it, reading the statement was clearly improper under Rule 803(5). Rule 803(5) requires that the proponent prove that the recorded recollection reflected the declarant's knowledge accurately. Here, Teeter clearly refused to claim that her recorded statement to police was accurate, meaning that it should have been inadmissible under Rule 803(5).