Friday, October 26, 2012
These Memories Can't Wait: Michigan Case Reveals Michigan Courts May Have Bungled Rule 803(5) Analysis
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.
But, based upon the recent opinion of the Court of Appeals of Michigan in People v. Conley, 2012 WL 5193202 (Mich.App. 2012), I think that Michigan courts have bungled part of the Rule 803(5) analysis.In Conley,
Early in the morning of January 1, 2011, the victim, defendant's girlfriend, was spotted on the side of road by a passing motorist. She told the motorist that defendant had beaten her, and she asked to be taken to her mother's home. The victim's mother testified that her daughter said defendant beat her with a gun, tore off her clothes, and forced her into a closet at her residence. The police were called and arrived thereafter. A police officer testified that the victim told him how defendant had beaten her with his fists and a gun, how he had torn off her clothing, and how he had forced her into a closet and would not allow her to leave. At the hospital, the same officer asked her to write out her prior statement, which she did.
When the victim testified to a lack of memory at the defendant's ensuing trial for unlawful imprisonment, felonious assault, and related crimes, the prosecution introduced her written statement under Michigan Rule of Evidence 803(5).
After the defendant was convicted, he appealed, claiming, inter alia, that the victim's statement was improperly admitted under Rule 803(5). The Court of Appeals of Michigan noted that the issue was governed by People v. Dinardo, 801 N.W.2d 73 (Mich. 2010), in which the Supreme Court of Michigan held that the proponent of evidence under Rule 803(5) must satisfy three requirements:
(1) The document must pertain to matters about which the declarant once had knowledge; (2) the declarant must now have an insufficient recollection as to such matters; and (3) the document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant's knowledge when the matters were fresh in his memory.
The court then analyzed the defendant's argument as follows:
Relying on the victim's testimony that at trial she “didn't remember” anything about the events from New Year's Day, defendant argues that the first element of MRE 803(5) was not met. However, because the victim's lack of memory clearly addresses the second element. defendant's argument fails. Further, at the time she wrote the statement, she demonstrated that she had knowledge of the matters about which she was writing. Indeed, she was only asked to write down what she had already told the police. Additionally, she orally relayed part or all of the same recollection of events to seven witnesses that testified to her knowledge of events at the time she composed the statement. Finally, contrary to defendant's argument, the third element is also met because the victim wrote the document. Therefore, the trial court did not abuse its discretion in admitting the substance of the document under MRE 803(5).
See the problem? According to Michigan courts, the third requirement under Rule 803(5) is satisfied if
(a) the document was made by the declarant; or
(b) if the document was made by someone other than the declarant, examined by the declarant, "and shown to accurately reflect the declarant's knowledge when the matters were fresh in his memory."
But if we look at the language of Rule 803(5), this is wrong. Instead, even if a Rule 803(5) document is made by the declarant, the proponent should still have to establish that the document "accurately reflect[s] the declarant's knowledge when the matters were fresh in his memory." In other words, the bolded language above should apply to (a) as well, when the declarant makes the document.
And, if we think about this, its makes sense. If the proponent only had to prove that the declarant made the writing under requirement three, it would only have to prove this fact and that the declarant once had knowledge (first requirement) and not has insufficient recollection (second requirement). Assume that William sees a fight between Dan and Vince. Two year later, William writes an accounting of the fight. Another year later, Dan is prosecuted for the fight. William is called to the witness stand and claims insufficient recollection. Under the current interpretation of Michigan Rule of Evidence 803(5), William's accounting is potentially admissible because he once had knowledge, now has insufficient recollection, and made the document. Under the correct interpretation, William's writing should be inadmissible because it could not be "shown to accurately reflect the declarant's knowledge when the matters were fresh in his memory."
To me, this seems like a pretty serious issue. In Conley, the court found the third requirement satisfied simply "because the victim wrote the document." In Dinardo, the court found the third requirement satisfied simply because the declarant "personally prepared the DI–177 report." This simply isn't good enough for Rule 803(5) purposes