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Refreshment and recollection

One of the things I like about doing this is that it teaches me stuff I never got around to learning.  Like the difference between "past recollection recorded" and "present recollection refreshed."  Sure, it's not up there in importance with the "Tastes great! Less filling!" debate, but understanding it can come in handy.  I think the 1st District got tripped up on that last week in its decision in State v. Henson.

In that case, the victim in a gross sexual imposition case testified on cross that she couldn't remember certain details of the alleged assault.  On redirect, the prosecutor gave her the statement she'd made after the incident, and had her read it aloud.  The appellate court held that was all proper under Evidence Rule 803(5), the exception for recorded recollection.  What made it improper was when the trial court gave the statement to the jury.  And I don't mean "admitted it as evidence," since it never had been.  The jury submitted a question asking for the statement, and the judge marked it as a court's exhibit and passed it on to them, without bothering to tell the defense or the prosecution.  The rule makes clear that the statement can be read, but can't be admitted as an exhibit, much less used the way the trial court did here.

But I'm not sure this was even a case of recorded recollection.  State v. Perry, a case out of the 6th District in 2002, does an excellent job explaining the requirements of that rule.  One of them is that, as the rule implies, the witness has no present recollection of the incident she's testifying about.  If she's just a little fuzzy on the details, then showing her the statement so that she can "refresh her recollection" under Evidence Rule 612 is the way you have to go.

Perry's an interesting case, involving the videotape of a statement made by an alleged child rape victim four days after the incident.  The requirements of 803(5) are

1) the witness has insufficient memory to accurately testify to crucial information; 2) that the witness can show through their testimony that the past recollection recorded was made or adopted when the matter was fresh in the witness's memory; and 3) that the past recollection recorded correctly reflects the knowledge the witness had at the time it was recorded.

Note that last one:  it's up to the witness, not a third party, to show that.  Normally, with a writing, that's pretty easy:  you just show the witness the writing, she testifies that it's hers and was made around the time of the incident, and that's good enough.  Here, the trial court excluded the videotape because the child couldn't testify to anything about it, since she wasn't the one who made it, and didn't remember anything about it.  Videotape is becoming a more frequent evidentiary technique, especially in these kinds of cases, and if you've got one, Perry's definitely a must-read.

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