Is It Your Recollection?: Court Of Appeals Of Texas Allows Officer To Establish Accuracy Of Recorded Recollection

Like its federal counterpart, Texas Rule of Evidence 803(5) provides an exception to the rule againsy hearsay for

A memorandum or record concerning a matter about which a witness once had personal 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, unless the circumstances of preparation cast doubt on the document's trustworthiness. 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.

Rule 803(5) is a Rule 803 hearsay exception, meaning that such a "recorded recollection" can be admitted regardless of whether the declarant is available to testify at trial. When the declarant is available to testify at trial, he can establish that the recorded recollection reflected his knowledge correctly by providing testimony to that effect. But if the declarant is "unavailable" at trial, how can the proponent of a recorded recollection establish such accuracy? That was the question faced by the Court of Appeals of Texas, Waco, in its recent opinion in In re. J.W., 2009 WL 5155784 (Tex.App.-Waco 2009).

In J.W., an adjudication petition alleged that J.W., a juvenile,

committed criminal mischief ($1,500 or more but less than $20,000) by scratching K.H.'s car. The trial judge found that J.W. engaged in delinquent conduct by committing a lesser offense of criminal mischief ($500 or more but less than $1,500) and ordered J.W. to pay restitution.  

K.H. reported the scratching of her car to Officer David Hoschar, who learned that G.A. was with J.W. on the night in question, and G.A. gave Hoschar the following statement:

On November 5th, 2007, while attending a basketball game, me and [J.W.] were walking out of the game and [K.H.] was walking in and me and [J.W.] walked a little bit further and J.W. started running towards the right in the back parking lot and I sat there waiting for my dad to get there and then like two minutes later [J.W.] started running back and I asked her why she was running and she said that she keyed her ([K.H.'s]) car and then we left.

The problem for the State was that when it called G.A. at trial, 

She testified that she had recently been in an auto accident, had suffered a head injury, and had lost some memory. She did not remember the events of November 25, 2007. G.A. was shown the witness statement; she said that she did not recognize the document but did recognize her signature. She then read the statement to herself and said she did not remember the events described in it because of her memory loss. On voir dire, G.A. stated that she did not remember where she was when she signed it or signing the document.

Thus, while G.A. had the requisite "insufficient recollection" of the incident for her statement to be admitted as an recorded recollection under Texas Rule of Evidence 803(5), she also lacked the memory sufficient to be able to vouch for the accuracy of the statement required under the Rule. In other words, she was "unavailable" under Texas Rule of Evidence 804(a)(3) because she testified to a lack of memory concerning the making of the statement.

So, why did the Court of Appeals find that the State had established the accuracy of the statement? Well, the court noted that the State "relie[d] on Officer Hoschar's unobjected-to hearsay testimony that G.A. told him that her statement was true at the time she wrote it." According to the court,  

Ideally, this evidence would come from the declarant, but under the circumstances of this case, we cannot say that the trial court abused its discretion in admitting the statement based on Officer Hoschar's unobjected-to hearsay testimony that G.A. told him that her statement was true.

-CM