EvidenceProf Blog

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

Wednesday, June 5, 2013

This is a Recording: When Is a Witness Ever Able to Testify Fully & Accurately for Rule 803(5) Purposes?

A few days ago, I posted an entry about relocating Federal Rule of Evidence 803(5) to Federal Rule of Evidence 801(d)(1). Today, I want to focus on another aspect of this Rule, which 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.

Specifically, let's focus on the question of when a witness "cannot recall [a matter] well enough to testify fully an accurately."

According to the Advisory Committee's Note to Federal Rule of Evidence 803(5),

The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed. The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required....Nevertheless, the absence of the requirement, it is believed, would encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators, or claim adjusters. Hence the example includes a requirement that the witness not have "sufficient recollection to enable him to testify fully and accurately." To the same effect are California Evidence Code §1237 and New Jersey Rule 63(1)(b), and this has been the position of the federal courts. 

My question is whether courts' interpretations of Federal Rule of Evidence 803(5) and state counterparts achieve the goal set out by the Advisory Committee. So, what does it mean for a witness noto to be able to recall a matter well enough to testify fully and accurately?

According to the Supreme Court of Minnesota in State v. Stone, 784 N.W.2d 367 (Minn. 2010),

The plain language of Minn. R. Evid. 803(5) requires an insufficient recollection to testify "fully and accurately," but does not require the witness to have a total absence of memory of the event about which he is testifying. See Minn. R. Evid. 803(5) (emphasis added). The cases that Stone cites to suggest that total lack of memory is a prerequisite to admission of a recorded statement under Rule 803(5) focus instead on whether the prosecution carried its burden to show that the memory of the witness was insufficient, not on whether the witness could recall any details of the event at issue.

And then there's this from the Supreme Court of Rhode Island in State v. Ricci, 639 A.2d 64 (R.I. 1994):

We have emphasized, however, that the rule merely requires an inability to "'testify fully and accurately'; it does not demand a total lack of memory concerning the event."... Although the witness may have some present memory of the event, the prior recorded statement would appear more complete and more reliable than the fragmented-memory testimony.

Here's my problem: Who besides Arnold Schwarzenegger (and now Colin Farrell) has total recall. I would argue that in the vast majority of trials held weeks, months, or even years after an event, nearly any witness would lack sufficient memory concerning the event to testify fully and accurately, with a recorded recollection close in time to the even almost always being more complete and more reliable.

Now, if we're okay with this, than that's fine, but this certainly does not seem to be the outcome that the Advisory Committee envisioned. In Stone, the recorded recollection was an audio recorded statement to police. In Ricci, the recorded recollection was a police report. Aren't these exactly the types "statements carefully prepared for purposes of litigation under the supervision of...investigators" that the Advisory Committee sought to place outside the scope of the recorded recollection exception?



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