Instant Recall: Supreme Court Of California Finds Statement Made Three Months After Event Qualified As Recorded Recollection

Like Federal Rule of Evidence 803(5), California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

So, when is the fact recorded fresh in the witness' memory? Seconds later? Minutes later? Hours? Weeks? Months? Years? According to the recent opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010), even facts recorded years after they occurred can qualify as recorded recollections under California Evidence Code Section 1237. I disagree.

In Cowan, Robert Cowan was convicted of the first degree murders of Clifford and Alma Merck.

On direct examination during the prosecution's guilt phase case-in-chief, Danny Phinney testified that on a date and time that he could not independently recall, he met defendant at an auto parts store. Defendant owed Phinney money. Phinney went to defendant's brother's house, where he looked at some items, including two jewelry boxes, jewelry, coins, a tooled leather wallet containing a driver's license bearing the name Mirck or Merck and a birth date in the early 1900's, and two Social Security checks with the name Merck on them. Phinney testified that he "would not have remembered any of" these facts had he "not seen the paperwork"-i.e., a transcript of an interview he had given police in December 1984 about the events described above. However, he remembered "out of my mind" that a 1922 silver dollar was among the coins he saw at the house.

Over defendant's hearsay objection, Detective Diederich testified that he interviewed Phinney on December 21, 1984, while Phinney was in custody following his arrest in October. The interview was tape-recorded and transcribed. During the interview, Phinney stated that the meeting with defendant at the auto parts store occurred during the first week of September 1984. Phinney also described various items of property he had seen at defendant's brother's house, including coins (one bearing the date 1922), costume jewelry, two government-type checks totaling about $600 made out to someone named Merck with an address on McClean Street, and a leather wallet with a driver's license and some other cards inside. After the interview, Phinney pointed out for Diederich the house in which he had seen the items. 

After he was convicted, Cowan appealed, claiming, inter alia, that the trial court should have deemed Phinney's 1984 statement inadmissible because it was made three months after Phinney's alleged meeting with him, meaning that the statement was not made while the meeting was fresh in his memory under California Evidence Code Section 1237. The Supreme Court of California disagreed, finding that Cowan failed to preserve the issue for appellate review and that, in any event,

Defendant points to no authority for the proposition that such a lapse of time between the events recorded and the time of the recording renders a past statement inadmissible under Evidence Code section 1237, and we are aware of none. (Cf. People v. Miller, supra, 46 Cal.App.4th at p. 422 [recorded statement made at least three weeks after recorded events occurred was admissible under Evid.Code, § 1237].) Indeed, federal courts have admitted statements made after even greater lapses of time under the federal counterpart to section 1237, Federal Rule of Evidence 803(5). (United States v. Patterson (9th Cir.1982) 678 F.2d 774, 778-779 [10 months]; United States v. Williams (6th Cir.1978) 571 F.2d 344, 348-350 [six months]; United States v. Senak (7th Cir.1975) 527 F.2d 129, 139-142 [three years].) These courts reason that district courts should have the flexibility to consider all pertinent circumstances in determining whether the matter was fresh in the witness's memory when the statement was made. (United States v. Patterson, supra, 678 F.2d at p. 779.) We see no reason why a similar approach should not govern under Evidence Code section 1237. Here, Phinney's statement to Diederich describing the items he saw and when he saw them was fairly detailed, and he had sufficient recollection to lead Diederich to the house in which he had seen the items. Accordingly, there was a sufficient basis for concluding the events were reasonably fresh in Phinney's mind at the time he spoke to Diederich.

But are courts correct in this regard? The Advisory Committee's Note to Federal Rule of Evidence 803(5) indicates that "[t]he guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887)." Owens was a voter fraud case, and the recorded recollections made in that case were checks or marks "made contemporaneously with the transaction to which they relate," i.e., made "during the progress of the election."

The Advisory Committee's Note also indicates that "[n]o attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate." Appellate courts have used this sentence to find that trial courts did not err in admitting recorded recollections made well after an event. For instance, in the Patterson case listed above, the Ninth Circuit found no problem with the district court's admission of a recorded recollection made 10 months after an event because

Broad discretion for the trial judge is clearly intended under Fed.R.Evid. 803(5), as the advisory committee notes indicate: "No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate."

I understand the finding that a trial judge has broad discretion. In my mind, though, that discretion only extends to recorded recollections made a few days after events. The word "contemporaneous" generally means "[o]riginating, existing, or happening during the same period of time." I could see a court finding that a recorded recollection made a few days after an event was made during the same period of time as the event. But I don't see how the term "contemporaneous" could be stretched to include recorded recollections made weeks, months, or event years after the event.

-CM