EvidenceProf Blog

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

Monday, June 4, 2012

Q: What Does Nitroglycerin Mean? A: Not Guilty; 3rd Circuit Fails To Decide Whether Text Message Was Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

And while the Third Circuit didn't reach the issue in United States v. Blackett, 2012 WL 1925540 (3rd Cir. 2012), it seems pretty clear that a text message can easily qualify as a recorded recollection under Rule 803(5).

In Blackett, Ikim Blackett was charged with bribing a juror. Specifically,

The evidence at trial showed that on May 24, 2010, Jeanette Smith...was selected to serve as a juror in the criminal trial of Unites States v. Fagan, et. al, Case No. 2006-80, which commenced that day in the District Court of the Virgin Islands....Smith testified that after court concluded the first day, Blackett came to her home some time between the hours of 8:00 p.m. and 10:00 p.m....Smith stated that she had known Blackett for approximately six or seven years....Smith testified that following a general introduction on her front porch, Blackett engaged her in conversation and mentioned "nitroglycerin"....Smith asked Blackett what "nitroglycerin" meant and he responded "not guilty"....Blackett refused to tell her who should receive the "not guilty" vote or who sent him to make the offer....Blackett offered her $1500 vote "not guilty"....Smith told Blackett that she would think about his offer because she wanted him to leave her home....Smith went back inside her home, and a few minutes later Blackett returned....When Blackett returned, he asked Smith for her cell phone number and whether she needed more than $1500....Smith refused to give Blackett her telephone number and declined his offer for more money.

After these events, Smith returned to her bedroom and sent text messages to family members and friends. Her text message to her sister stated:

You see why I tell you I ain't want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don't know what to do, because if I tell the judge they're going to know it's me.

I know, right. Now I scared because I don't want them to do anything to me or [my daughter][. . .] * * *

At Blackett's trial for bribing a juror, Smith was allowed to read a copy of the text message to the jury after (a) she testified that she could not precisely recall the message she texted her sister; and (b) she identified and reviewed a copy of the text while on the stand and found that it accurately reflected what she texted on that night.

After Blackett was convicted, he appealed, claiming, inter alia, that the text message was improperly admitted as a recorded recollection under Rule 803(5). The Third Circuit did not resolve this issue, instead, finding that even if the text message was improperly admitted, any error was harmless.

That said, it seems pretty clear that the text message met the foundational requirements of Rule 803(5). Smith clear testified (a) that she once had knowledge of the bribe and now lacked enough knowledge to testify completely and accurately about it; (b) that she wrote the text right after the bribe while it was fresh in her memory; and (c) that the text accurately reflected her knowledge.



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