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Univ. of South Carolina School of Law

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Wednesday, January 25, 2012

This Is A Recording?: California Court Finds No Error In Admission Of Recorded Recollection Despite Contradictory Testimony

In a post in August 2010, I wrote about the opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010). That post concerned California Evidence Code Section 1237, which, similar to Federal Rule of Evidence 803(5), provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

That post questioned whether the California Supremes were correct in deeming a statement made three months after an event admissible under California Evidence Code Section 1237. In its recent opinion in People v. Gallardo, the Court of Appeal, Fourth District, Division 1, California, also allowed for the admission of a statement that was about three months old. And, as in People v. Cowan, I'm not sure that the court got it right, albeit for a different reason.

In Gallardo, Robert A. Gallardo, Jr. was convicted of making a criminal threat, misdemeanor infliction of corporal injury to a person he formerly dated, vandalism, two counts of disobeying a restraining order, and misdemeanor battery. He thereafter appealed, claiming, inter alia, that the trial court erred in allowing for the admission, under California Evidence Code Section 1237, of a recorded statement made by the alleged victim to police about three months after the crime charged. The appellate court initially noted that Cowan held that even statements made three months after an even can still be made while the event was fresh in the witness' memory and satisfy Section 1237.

Gallardo claimed, however, that the alleged victim's recorded statement was "unreliable because her trial testimony contradicted the statement, and she admitted she was angry at the time she made the statement." The appellate court disagreed, concluding that

Gallardo's argument...does not go to the admissibility of the evidence, but instead, to its weight. The jury heard the differing testimony and, as the factfinder, was in the best position to determine which testimony was most credible. 

I disagree. As the language of Section 1237 makes clear, a recorded recollection is only admissible if it "[i]s offered after the witness testifies that the statement he made was a true statement of such fact...." In other words, the classic recorded recollection case involves a witness who forgets an event or portions of an event but is willing to testify that a prior recorded statement was a true statement of fact. That's not what happened in Gallardo. Instead, the alleged victim's trial testimony apparently contradicted her prior recorded statement, meaning that the alleged victim did not testify that the recorded statement was a true statement of fact. And despite the court's contrary conclusion, such testimony is a foundation fact, not merely something that goes to the weight of the evidence.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2012/01/8035-people-v-gallardonot-reported-in-calrptr3d-2012-wl-183260calapp-4-dist2012.html

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