Record(ing) Recollection: Minnesota Case Reveals Two Important Aspects Of Recorded Recollection Exception To Rule Against Hearsay

Like its federal counterpart, Minnesota 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.

The recent opinion of the Court of Appeals of Minnesota in State v. Stone, 2009 WL 1919005 (Minn.App. 2009), addressing two important aspects of this "recorded recollection" exception: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? 

In Stone, Shane Stone was charged with aiding and abetting first-degree aggravated robbery based upon a crime committed at the house of D.B., A.J., their two young children, and A.J.'s father, G.J. The morning after the robbery, G.J. made a statement to police, which was recorded and reduced to writing, and during which, inter alia, he was asked "And did you get a good look at his face?" and answered, "Yeah he had glasses and he's light complected." Several days later, G.J. (as well as D.B. and A.J.) identified Stone as one of the robbers during a photo lineup. 

At Stone's trial, G.J. testified, and he never responded to any questions by saying, "I don't remember" or "I don't know."  G.J. initially testified that he did not get a good look at the man without a mask, but after being shown statements that he made during his police interview, he stated, “I can't say for sure right now." G.J. also had difficulty remembering details of the physical description of the intruder that he gave to the police, even after he was shown his prior statements. But G.J. agreed that the witness statement shown to him was “an accurate reproduction of the questions [that he was] asked and the answers that [he gave]."

Thereafter, over defense counsel's objection, the prosecution introduced into evidence the audio recording of G.J.'s statement. After Stone was convicted, he appealed, claiming, inter alia, that the audio recording was improperly admitted under Minnesota Rule of Evidence 803(5). Stone first claimed that because G.J. never answered any questions at trial by saying "I don't remember" or "I don't know," he lacked the insufficient recollection necessary for Minnesota Rule of Evidence 803(5) to apply.

The Court of Appeals of Minnesota disagreed, finding that

Rule 803(5) does not require that a witness realize and claim that his recollection is insufficient; it requires that a witness "has insufficient recollection to testify fully and accurately." G.J.'s statement, "[t]hat's all I remember right now," indicated insufficient recollection if the audio-recorded police interview contained evidence that G.J. had not been able to remember at trial.

Second, Stone claimed "that the recording of G.J.'s police interview was inadmissible because it was not shown that G.J. adopted the recording." According to Stone, because G.J. did not make the recording, the state needed to show that he had reviewed and adopted the recording at a time when the robbery was fresh in his memory. The court rejected this argument as well, finding that

there [wa]s no real dispute that G.J. made the statements on the audio recording. There is no claim that the voice on the recording is not G.J.'s voice or that the recording does not accurately reflect what G.J. said during the interview.

In other words, if the prosecution were introducing the written statement prepared by a police officer based upon what G.J. told police, G.J. would have needed to adopt that writing to ensure it accurately captured what G.J. said. But because the prosecution introduced the audio recording of what G.J. actually said, there was no need for G.J. to adopt that recording.

-CM