EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, September 25, 2012

Memory Loss: Court Of Appeals Of Louisiana Deems Officer Who Was Shot & Had Stroke "Unavailable"

Similar to its federal counterpartLouisiana Rule of Evidence 804(b)(1) provides a hearsay exception for 

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

And, similar to its federal counterpartLouisiana Rule of Evidence 804(b)(1) only applies if a witness is "unavailable." So, let's say that a police officer investigates a car accident, gives a deposition, and then is shot and suffers a stroke. If the gunshot and stroke limit the officer's ability to remember the accident, is he "unavailable" for Rule 804 purposes? Let's take a look at the recent opinion of the Court of Appeal of Louisiana, First Circuit, in Walley v. Vargas, 2012 WL 4320233 (La.App. 1 Cir. 2012).

In Vargas

On the evening of August 26, 2005, plaintiffs, Daniel and Alisa Walley, were involved in a motor vehicle accident when their 2006 Harley Davidson motorcycle, which was being operated by Daniel and on which Alisa was a passenger, was struck by a 2001 Chevrolet truck being driven by Regina Vargas. The Walleys were traveling westbound on Rushing Road in Denham Springs, approaching the intersection of Rushing Road and Range Avenue, an intersection controlled by a traffic signal. Daniel Walley, who intended to turn left onto Range Avenue at the traffic signal, entered the left-turn lane and was then struck by Vargas as she attempted to make a left turn into the eastbound lane of travel on Rushing Road from a private driveway of a shopping center.

Matt Martello was the officer who investigated the accident and gave a deposition in connection with the plaintiffs' suit for damages as a result of the accident.

In the years after investigating this accident and completing an accident report, Martello suffered two serious medical situations. Specifically, Martello suffered from gunshot wounds on the job in September of 2006, and, thereafter in April 2009, he suffered from a stroke, which he acknowledged at trial affected his ability to recall past events

Thereafter, at trial,

With regard to his memory deficits resulting from his stroke, when asked at trial if he remembered working this accident, Martello responded that he remembered the motorcycle, but that was "about all." Moreover, although Martello testified that he was familiar with the scene where this accident occurred, during questioning of Martello by plaintiffs' counsel, Martello was clearly confused as to the events of this accident and unable to recall the circumstances of his investigation. He also had no recollection of interviewing either driver involved in the accident. Furthermore, when plaintiffs' counsel questioned Martello as to his previous testimony under oath, Martello responded that he did not remember. Thus, plaintiffs' counsel then sought to introduce Martello's previous deposition into evidence on the basis that Martello's lack of memory rendered him unavailable as a witness.

Defense counsel, however, objected to the admission of the deposition, and the trial judge sustained the objection. After the jury found for the defendants, the plaintiffs appealed, claiming, inter alia, that the deposition should have been deemed admissible under Louisiana Rule of Evidence 804(b)(1).

The Court of Appeal of Louisiana, First Circuit agreed, finding that a witness is "unavailable" under Louisiana Rule of Evidence 804(a)(3) when the witness "[t]estifies to a lack of memory of the subject matter of his statement...." The court then found that Martello qualified as "unavailable" under Rule 804(a)(3) because,

As detailed above, because of his medical condition at the time of trial, Martello recalled only the motorcycle, but no other facts or circumstances surrounding his investigation of this accident or preparation of the accident report. Thus, Martello clearly met the definition of an unavailable witness as described by LSA–C.E. art. 804(A)(3).

As support for its conclusion, the court then noted that

In a factually similar case involving mental deficits, subsequent to the events giving rise to the suit, a deputy marshal (who was a named defendant) suffered a head injury, which led to seizures and resulted in the deputy marshal missing two months of work. Subsequently, after giving his deposition in the matter, the deputy marshal was involved in a motor vehicle accident, leading to a recurrence of the seizures and eventually to a diagnosis of dementia. The United States Eleventh Circuit Court of Appeals affirmed the district court's finding that the deputy marshal was "unavailable" pursuant to Federal Rule of Evidence 804(B)(1) and concluded that the district court had not abused its discretion in admitting the deputy marshal's depositon in lieu of his testimony at trial.



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