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Univ. of South Carolina School of Law

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Tuesday, August 20, 2013

You Can't Trust a Drunk, Right?: Court of Appeals of Minnesota Finds Drunk Statement Was a Recorded Recollection

Similar to its federal counterpartMinnesota 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 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.

So, can a statement made while the declarant was so drunk that she cannot remember the statement be shown to reflect the declarant's knowledge correctly? According to the recent opinion of the Court of Appeals of Minnesota in State v. Barta, 2013 WL 440579 (Minn.App. 2013), the answer is "yes." I disagree.

In Barta, Michael Barta was convicted of felony domestic assault based upon acts allegedly committed upon M.M. At Barta's trial, 

K.D. testified that she was intoxicated on the date of the incident and therefore unable to recall witnessing any physical contact between appellant and M.M. Respondent attempted to refresh K.D.'s recollection by playing an audio recording of her statement to the police on the night of the incident, but hearing the recording did not refresh her recollection. She could not even recall talking to the police officer on the date of the incident. Over appellant's hearsay objection, the court allowed the audio recording of the statement to be played for the jury as a recorded recollection under Minn. R. Evid. 803(5). In the recorded statement, K.D. told the police officer that she saw appellant “backhand” M.M., that M.M.'s “drink went over the bar,” and that she then chased appellant out of the bar.

After he was convicted, Barta appealed, claiming that K.D.'s statement did not qualify as a recorded recollection. According to the Court of Appeals of Minnesota,

In order for the audio recording of K.D.'s statement to police to be admissible as a recorded recollection under rule 803(5), respondent was required to show that (1) the recorded statement constitutes a “memorandum or record”; (2) K.D. had “insufficient recollection to testify fully and accurately”; (3) the statement was “made or adopted by [K.D.] when the matter was fresh in [her] memory”; and (4) the statement “reflect[s] [K.D.'s] knowledge correctly.”... Only the fourth requirement is at issue in this case.

And, according to the Court of Appeals, the district court did not properly address the issue

As a preliminary matter, it appears that the district court did not consider whether the recorded statement was shown to “reflect [K.D.'s] knowledge correctly.” The district court reasoned that the fourth requirement had been met because there was no issue concerning the proper transcription of the statement. But the fourth requirement of rule 803(5) pertains to the accuracy and trustworthiness of the statement, not how accurately it was transcribed.

The Court of Appeals then went on to note that the fourth requirement has been ill-defined by Minnesota courts:

Appellant argues that K.D.'s recorded statement was not admissible under rule 803(5) because it was not shown to reflect her knowledge correctly. Specifically, appellant calls into question the accuracy of K.D.'s statement because, due to her intoxication, she did not even remember giving it to the police officer. And because she could not remember speaking to the police officer, she was unable to testify that her statement more accurately reflected what she perceived and experienced on the date of the incident. But rule 803(5) is silent as to how the fourth requirement should be established.

Then, however, despite acknowledging the lack of a clear test for the fourth requirement, the Court of Appeals had no problem finding that it had been satisfied:

Here, while K.D.'s intoxication casts some doubt on her ability to relate to law enforcement what she saw, K.D. acknowledged that it was her voice on the recording, and her statement was given to the police officer shortly after the alleged assault. Additionally, the police officer testified that K.D. seemed to provide a coherent account of what happened and that his conversation with her “seemed to flow much better than most of the other conversations” with other witnesses. Moreover, K.D.'s statement is consistent with the trial testimonies of M.M., T.K., and the bartender. This is sufficient to establish reliability and trustworthiness under our standard of review.

Really? The fact that K.D. acknowledged that it was her voice on the recording and that the statement was made shortly after the alleged assault clearly relates to the third requirement and not the fourth requirement of Rule Evidence 803(5). As for K.D.'s account appearing to be coherent and flowing better than most of his conversations, my response is: so what? In college, one of my friends had a tape recorded. When one of us got especially drunk, he would record what the person was saying. Some of these statements sounded coherent and flowed very well. They were also patently false. One time I was recorded as saying that I was in a relationship with Sally Hemings. Yes, the Sally Hemings whom Thomas Jefferson "had relations with." There is a reason that we have the expression: "You can't trust a drunk."

Finally, the mere fact that K.D.'s statement was consistent with the testimony of other witnesses tells us little about whether the statement accurately reflected what she saw. I would direct the Court of Appeals of Minnesota to a little film called Rashomon on this point.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/08/8035-state-of-minnesota-respondent-v-michael-christopher-barta-nw2d-2013-wl-4404579minnapp2013.html

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Comments

Why didn't the prosecutor introduce the audio as a prior inconsistent statement? In my jurisdiction, "I don't remember making that statement" is enough of an inconsistent statement under our case law.

Posted by: TJ | Aug 20, 2013 10:15:17 AM

TJ: Presumably, the statement was not made under oath and thus would not be admissible to prove the truth of the matter asserted. Also, wouldn't this get into the situation addressed by cases like Ince in which it can be improper to calla witness for the sole purpose of impeaching him or her?

Posted by: Colin Miller | Aug 20, 2013 11:22:01 AM

In my jurisdiction (Alaska state practice) a prior inconsistent statement does not need to be under oath to be admissible. And prior inconsistent statements come in as substantive evidence, not just impeachment, so Ince (I assume you're talking about 21 F.3d 576) would not apply.

It's interesting to hear the rules I operate under are not the norm. Frankly, I don't see how prosecutors can prove DV crimes without our rules re. inconsistent statements, where recanting victims are very common.

Posted by: TJ | Aug 21, 2013 3:21:43 PM

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