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

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Wednesday, July 11, 2012

This Is (Not) A Recording: Court Of Appeals Of Ohio Finds Police Statement Satisfies Neither Rule 612 Nor Rule 803(5)

Like its federal counterpartOhio Rule of Evidence 612 allows an attorney to use a writing (or anything else) to refresh the recollection of a witness who once had personal knowledge so that the witness can then testify based upon his refreshed recollection. And, if this doesn't work, similar to its federal counterpartOhio 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 him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his 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 State v. Trotter, 2012 WL 2354342 (Ohio App. 8 DIst. 2012), the defendant claimed that the procedure used by the prosecution in using a witness' statement to the police satisfied neither of these rules. So, was he right?

In Trotter, David Trotter was convicted of rape and kidnapping. After he was convicted, he appealed, claiming, inter alia, that the prosecution's procedure in using the statement of prosecution witness Sean Wood was improper. Specifically,

Wood testified that he looked at the statement he made to the police about the night in question before he testified and while he was on the witness stand, but that it did not refresh his memory. For example, asked what defendant said to Wood on the phone on March 26, 2009, Wood replied, "I don't remember. I read [the statement], but it doesn't look familiar." Wood also testified that he did not remember what defendant said when defendant came out of the upstairs bedroom where [the alleged victim] was. The state instructed Wood to read his statement to the police, and after doing so, Wood testified, "I don't remember him saying that to me, though."

Over defense objections, Wood read portions of his statement into the record and, after prompts from the court, testified to certain things from memory. The hearsay statements that Wood improperly read into the record [we]re as follows: First, before Wood arrived at defendant's house on the night in question, defendant allegedly told Wood on the phone that there was a drunk 14–year–old passed out at defendant's house. And second, defendant allegedly said that he had sex with [the alleged victim] when he walked out of the upstairs bedroom where [the alleged victim] was passed out.

The Court of Appeals of Ohio, Eighth District, agreed with Trotter that this procedure was improper under either Rule 612 or Rule 803(5). According to the court,

Further examination of Wood regarding his statement was improper under Evid.R. 612, because Wood testified that it did not refresh his memory. Additionally, the State did not establish that the statement accurately reflected Wood's knowledge at the time of the police interview. In this regard, Wood's testimony regarding his statement was improper under Evid.R. 803(5). 

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/07/6128035-state-v-trotterslip-copy-2012-wl-2354342ohio-app-8-dist2012.html

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