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Univ. of South Carolina School of Law

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Monday, May 21, 2012

Hawaii 5-0: Supreme Court Of Hawai'i Seemingly Errs in Deeming Police Report Admissible As Recorded Recollection

Like its Federal Rule of Evidence 803(5)Hawai'i Rule of Evidence 802.1(4) provides an exception to the rule against hearsay for 

A memorandum or record concerning a matter about which the 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.

In its recent opinion in State v. Keohokapu, 2012 1701368 (Hawai'i 2012), the Supreme Court of Hawai'i found all of the elements of the elements of this exception satisfied. I think that one was missing.

In Keohokapu
On the night of June 7, 2008, Petitioner, Petitioner's wife, Kauilani Keohokapu (Kauilani), and Petitioner's brother went to club "Komo Mai." Decedent Steven Wilcox and his friend Robin Gregory also were at the club. At some point, Petitioner became upset because Gregory was allegedly staring at Kauilani. Petitioner left the club and went outside to his car. Kauilani followed Petitioner, and the two allegedly began to argue. Later, Petitioner's brother came out of the club to the car, and it appears that the three argued.
During the argument, Petitioner's brother grabbed Kauilani's arm and pushed her away from the car. At that moment, Wilcox came out of the club, approached the car, and said something to the effect of, "That's one female." Petitioner, who was sitting in the car, got out and said, "[T]hat's my wife." Petitioner and Wilcox then began to fight. At one point, witnesses stated that they saw Petitioner with a metal object or a knife in his hand. Sometime during the fight, Petitioner and Wilcox collided, and Petitioner stabbed Wilcox in the chest. Petitioner then went back to his car and drove away. On June 8, 2008, Wilcox died as a result of the stab wound.

After the petitioner was convicted of manslaughter, the State called his wife at the sentencing hearing.

Respondent then requested Kauilani to review a police report from July 13, 1996 involving an...incident of domestic violence. Kauilani related that she had written the report the day after the incident, and that her signature was on both pages of the report. Respondent inquired whether the report helped Kauilani remember the events of July 13, 1996. Petitioner's counsel objected, arguing that foundation was lacking for admitting the statement in evidence. The court overruled the objection. Respondent asked Kauilani whether she remembered Petitioner head-butting and pulling her hair on July 13, 1996. Kauilani replied she did not because "this is 2009."

Respondent then attempted to move the entire report into evidence, and the court asked both counsel to approach the bench. Petitioner's counsel objected, contending that the entire document should not be admitted into evidence and that Respondent had not laid a proper foundation for Kauilani's testimony. The court overruled the objection, concluding that Respondent "laid sufficient foundation for past recollection recorded. And under the rule you read it into evidence." 

After the petitioner was sentenced to life with the possibility of parole, he appealed, claiming, inter alia, that the trial court erred in deeming the report admissible as a recorded recollection under Rule 802.1(4). The Supreme Court of Hawai'i disagreed, finding that

although Kauilani did not sign her July 13, 1996 statement under penalty of perjury, the statement satisfies the criteria for the past recollection recorded exception. Kauilani testified that she remembered the incident on July 13, or at least "the part with me," but that she could not remember the specific allegations of abuse that were described in the statement. She also testified that the statement was in her writing, contained her signature, and that she wrote the report the day following the incident. Thus, Respondent established that Kauilani had personal knowledge of the July 13 incident, that her statement was prepared when it was fresh in her memory (the day after the incident), that it accurately reflected her knowledge, and that she currently had insufficient recollection to testify fully and accurately.

Okay, so clearly (1) Kauilani once had knowledge about the July 13th incident, (2) she now had insufficient recollection to be able to testify fully and accurately, (3) she made or at least adopted the report, and (4) the report was made or adopted when the incident was fresh in her memory. But where is the evidence that the report reflected her once existing knowledge correctly? As the court noted, the statements wasn't signed under the penalty of perjury. And it wasn't as if Kauilani remembered the specific allegations of abuse but forgot their details; she didn't even "remember the specific allegations of abuse that were described in the statement. Finally, there is no indication from the opinion that Kauiliani stood by the accuracy of her statement of testified that she generally records/reports things accurately. Any one of these things likely would have been enough to establish the accuracy of the report, but, in the absence of any of them, I don't see how the court found that the report was admissible under Rule 802.1(4).

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/05/612-state-v-keohokapu-p3d-2012-wl-1701368hawaii2012.html

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