Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

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.

Search

Recent Entries

  • April 26, 2017
    MIA
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech