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Univ. of South Carolina School of Law

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Tuesday, March 8, 2011

Double Down: Court Of Appeals Of Arkansas Finds Police Interrogation Improperly Admitted As Recorded Recollection

Like its federal counterpart, Arkansas 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 enable him to testify fully and accurately, shown to have been made or adopted by the witness 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, as the recent opinion of the Court of Appeals of Arkansas in Hancock v. State, 2011 WL 714674 (Ark.App. 2011), makes clear, when someone else records the alleged recorded recollection of a declarant, both participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription.

In Hancock, Charles Hancock was convicted of possession of ephedrine, pseudoephedrine, or phenlypropanolamine with intent to manufacture methamphetamine. Joseph James was in the van drive by Hancock when Agent Jason Akers of the Tenth Judicial District Drug Task Force pulled the van over, searched the van, and discovered drugs. James thereafter interrogated James and transcribed his statement.

At trial, James testified but indicated that he did not recall giving a statement to Agent Akers. The prosecution thereafter had Akers read the statement to the jury pursuant to Arkansas Rule of Evidence 803(5).

After he was convicted, Hancock appealed, claiming, inter alia, that James' statement was inadmissible under Rule 803(5). The Court of Appeals of Arkansas agreed, initially noting that when someone else records the alleged recorded recollection of a declarant, "[b]oth participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription." The court then found that this standard had not been satisfied because

nothing in the portions of the statement read into the record by Akers made any mention of whether James affirmed the statement to be true. Additionally, James never testified about whether the statement he gave to Akers was true. At best, James testified that the police asked him questions and then wrote the questions and James's answers on a piece of paper, which James subsequently initialed. Moreover, Akers also failed to verify the accuracy of the transcription of James's statement. Although Akers acknowledged that he took the statement from James and explained the process by which he took it, Akers never testified that the statement was accurately recorded...Because there was neither evidence that the recordation was adopted by the declarant nor evidence that the recordation was accurately recorded, we conclude that the circuit court erred in allowing Akers to read the statement into the record. Although the State asserts that the introduction of the statement was not prejudicial, we disagree. The circuit court specifically referenced James's statement in denying Hancock's motion for directed verdict, relying on it as evidence of Hancock's intent to manufacture methamphetamine. As such, we conclude that the introduction of James's statement constituted reversible error.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/03/8035-hancock-v-state2011-ark-app-174-sw3d-2011-wl-714674arkapp2011.html

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