EvidenceProf Blog

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

Saturday, October 1, 2011

In Need Of A Refresher: Court Of Appeals Of Louisiana Finds Trial Court Erred In Precluding Refreshment Of Recollection

Similar to Federal Rule of Evidence 612La. C.E. art. 612(b) provides that

In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying.  If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object.  If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

And, as the recent opinion of the Court of Appeal of Louisiana, Fourth Circuit in State v. McElveen, 2011 WL 4486054 (La.App. 4 Cir. 2011), makes clear, the refreshing writing, recording, or object can be prepared by anyone, not just the testifing witness.

In McElveen, co-defendants/brothers, Thatcher McElveen and Terry McElveen were both convicted of second-degree murder and sentenced to life imprisonment. After they were convicted, the defendants appealed, claiming, inter alia, that the trial court erred in prohibiting defense counsel from using a crime scene report to refresh a detective's memory as to whether he sent blood samples from the crime scene to a criminalist. Specifically, the defendants contended that this ruling impeded them from establishing that the criminalist had custody of the victim's blood in his serology lab, which would gave bolstered the defense theory that the criminalist planted the victim's blood on a shirt found in the McElveen residence.

At trial, the prosecution objected to the use of the report to refresh the detective's recollection, claiming that " report authored by another person could not be used to refresh a witness' recollection. In addressing the defendant's appeal, the Court of Appeal of Louisiana, Fourth Circuit found that "[t]he trial court erroneously sustained the prosecution's objection on that ground." In reaching this conclusion, the court pointed out that Note (a) of Comments under C.E. art. 612 states: 

This Article follows former R.S. 15:279 in permitting a witness to refresh his memory by examining a writing, recording or object regardless of when and by whom it was prepared. This Article is based on Federal Rule of Evidence 612.

Nonetheless, the appellate court found that based upon the overwhelming other evidence of the defendants' guilt, the trial court's error was harmless and affirmed the defendants' convictions.



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