EvidenceProf Blog

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

Wednesday, December 28, 2011

This Is A Recording: Court Of Appeals Of Arizona Finds Videotape Qualifies As Recorded Recollection

Like its federal counterpart, Arizona 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 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' 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.

Usually, this recorded recollection exception applies to writings (or typewritten documents), and you can see from the language of Rule 803(5) that this was the original intent of the Rule ("may be read into evidence"). That said, as is made clear by opinions such as the recent opinion of the Court of Appeals of Arizona, Division 1, Department E., in State v. Silva-Acosta, 2011 WL 6747389 (Ariz.App. Div. 1 2011), courts have also found that the exception covers videotapes.

In Silva-Acosta, Jose Jaime Silva–Acosta was convicted of molestation of a child and sexual abuse. 

The victim was seven years old at the time of trial. She provided conflicting testimony regarding her ability to remember specifics of the unlawful touching underlying the charges against Silva–Acosta. For example, although the victim testified she could not remember the incident, she also testified that Silva–Acosta touched her "private." She first testified he touched her breast with his hand and licked her breast, but later testified he did not lick her. In light of these inconsistencies, the State sought to play for the jury a video recording of the forensic interview conducted with the victim six days after the incident. Over Silva–Acosta's objection, the court permitted the recording to be played for the jury. The recording was not admitted in evidence.

After he was convicted, Silva-Acosta appealed, claiming, inter alia, that the video recording was inadmissible hearsay. The Court of Appeals of Arizona disagreed, concluding that

the victim had difficulty remembering the details of the incident at trial. However, she also testified that she remembered talking to the police about the touching and that her memory regarding the incident was better at the time of the interview, less than a week after the alleged crimes were committed. Consequently, the recorded interview squarely fits the definition of a recorded recollection and therefore was admissible as a hearsay exception under Rule 803(5)....The superior court accordingly did not abuse its discretion in allowing the jury to view and hear the recording.



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