Play It Again, Sam: Court Of Appeals Of Arizona Affirms Conviction Despite Video Recorded Recollection Being Admitted As Exhibit

Like its federal counterpart, Arizona 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 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. 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.

The recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Martin, 2010 WL 3001900 (Ariz.App. Div. 1 2010), gives me the opportunity to revisit two issues recently discussed on this blog: (1) Does a videotape qualify as a recorded recollection under Rule 803(5); and (2) Will an appellate court ever reversed based upon a recorded recollection being improperly received as an exhibit?

In Martin, Cordell Coolidge Martin  appealed from his convictions and sentences for one count of sexual conduct with a minor and two counts of molestation of a child. The alleged victim was C.Y., and

On July 18, 2007, C.L., a forensic specialist with the Mesa Police Department, conducted a videotaped forensic interview of C.Y. Detective M., the case agent, monitored the live video and audio feed of the interview in another room. During the interview, C.Y. recounted numerous instances of Defendant engaging in sexual conduct with her. One of those instances occurred during the daytime while C.Y. was in bed with Defendant and he touched her inappropriately. C.Y. explained that she was wearing a “tank down” at the time. A similar incident involving improper touching occurred when Defendant was home alone with C.Y. and her half-sister, and the half-sister "fell off the bed."

At trial, and over defense counsel's objection, the trial court admitted the videotape into evidence under Arizona Rule of Evidence 803(5) and played it for the jury. Later, in response to a question from the jury, the judge allowed jurors to review the videotape during deliberations.

After he was convicted, Martin appealed, claiming, inter alia, that a videotape does not qualify as a recorded recollection under Arizona Rule of Evidence 803(5) and that the trial court erred by receiving the videotape into evidence and allowing jurors to review it during deliberations.

The Court of Appeals of Arizona, Division 1, rejected his first argument, finding that

Nothing in Rule 803(5) expressly limits the Rule's application "to written materials;" rather, Rule 803(5) states that it applies to "[a] memorandum or record." Accordingly, we must determine whether a videotape qualifies as a "memorandum or record." "We construe rules of evidence in the same manner that we construe statutes, 'giving effect to the plain meaning unless the language is ambiguous.'"...We may consult a dictionary when determining the ordinary meaning of a word.... In part, the Merriam-Webster's Dictionary defines the noun “record” as “something that records,” for example, “something that recalls or relates past events.” Merriam-Webster's Collegiate Dictionary, 1040 (11th ed. 2003) Additionally, "record" is also defined in part as "something on which sound or visual images have been recorded."...Similarly, "videotape" is defined as "a recording of visual images and sound (as of a television production) made on magnetic tape." Merriam-Webster's at 1394. Based on these common definitions, we hold that a videotape may qualify as a "record" for purposes of Rule 803(5).

Now, if the court wanted to find that the logic of Rule 803(5) extends to videotapes, I wouldn't necessarily agree with the court's conclusion, but I could respect its perspective. But instead, the court looked at the "plain meaning" of the language of the Rule. As noted, though, the second sentence of Rule 803(5) indicates that "[i]f 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." To me, it is clear from this language that Rule 803(5) only applies to a written memorandum or record because a witness cannot read a videotape into evidence. Again, there might be good reasons to extend the logic of Rule 803(5) to videotapes, but I don't see how a plain reading of the entirety of the Rule supports this conclusion.

With regard to Martin's second argument, the appellate court agreed that "the trial court erred pursuant to the plain language of Rule 803(5) in receiving the videotape in evidence and making it available to the jury during deliberations." That said, the court needed to find prejudice to Martin to reverse, and it did not make such a finding because, inter alia, "[t]he jury could have found Defendant guilty on count two based solely on the jury's viewing of the videotape at trial."

This again leads me to ask whether an appellate court will ever reverse based upon a recorded recollection being improperly received as an exhibit. It seems to me that an appellate court will always do what the court did in Martin and simply affirm based upon a finding of harmless error. And what that means is that attorneys need to be prepared at trial with a copy of Rule 803(5) to show to the judge in the event that opposing counsel wants to introduce a recorded recollection as an exhibit.

-CM