EvidenceProf Blog

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

Thursday, February 25, 2021

Court of Appeals of Indiana Finds Child Molestation Victim's Forensic Interview Was Admissible as a Recorded Recollection

Similar to its federal counterpart, Indiana Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A)      is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B)      was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C)      accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

The recent opinion of the Court of Appeals of Indiana in Witherspoon v. State, 2021 WL 718234 (Ind.App. 2021), does a good job of fleshing out the three elements contained in subsections (A)-(C).

In Witherspoon, Willie Witherspoon Jr. appealed his convictions for Level 1 felony child molesting and Level 4 felony child molesting. At trial, the prosecution introduced the forensic interview of the victim, J.C.  In addressing Witherspoon's argument that this interview was inadmissible under Rule 803(5), the court held that,

Regarding the first element, Witherspoon argues J.C.’s inability to answer certain questions does not “show that he was not able to [recollect] nor that he testified inaccurately.”...Whether a witness lacks sufficient recollection to testify fully and accurately rests within the trial court's discretion....Complete exhaustion of the witness's memory is not required....
Here, J.C. repeatedly could not remember answers while testifying. For example, J.C. stated he could not remember (1) what clothing he was wearing, (2) whether Witherspoon ever licked a part of J.C.’s body other than his anus, (3) whether Witherspoon ever did not use “liquid” when inserting his penis into J.C., (4) if Witherspoon ever touched J.C.’s “private part,” or (5) the timing of these events—all of which J.C. was able to answer in the forensic interview. This was sufficient for the trial court to find J.C. was unable to testify fully and accurately....
Regarding the second element—whether the record was made or adopted by the witness when the matter was fresh in their memory—Witherspoon argues “it was never established that the record was adopted when the matter was fresh in J.C.’s memory.”...We disagree. J.C. stated in the forensic interview that one of the incidents of molestation occurred within a week of the interview. And at trial, J.C. stated these events would have been fresher in his mind at the time of the forensic interview and he “remember[ed] these things better” at the time of the interview than he did during trial....This is sufficient to show the record was made or adopted when the matter was fresh in J.C.’s mind.
For the third element, Witherspoon argues the State failed to establish the forensic interview correctly reflects J.C.’s knowledge because J.C. was unable to give a date of the events at trial, even though timing was a “substantial issue.”...But J.C. was clearly knowledgeable about the timeline of the events during the interview—he stated it began on his last day of fifth grade, went on throughout the summer, and that the last incident had occurred within a week of the interview. And these statements were never contradicted at trial. Although J.C. stated he could no longer remember the timing of the events, this is not a contradiction of the timeline he gave in the interview; it is simply an inability to remember. Furthermore, J.C. noted he told the truth in his forensic interview and that his memory was better during that time.



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