J.G. v. State, 213 So. 3d 936

J.G. was convicted in a bench trial of misdemeanor battery and resisting arrest without violence; he appealed.
At trial the arresting officer testified that J.G. knew she was an officer before the incident.
Defense sought to refresh or impeach the officer’s recollection using a pretrial deposition that was audio-recorded (no transcript).
The trial court refused to allow use of the audio recording for impeachment/refreshing memory, citing lack of a rule permitting playing excerpts and concerns about context.
The court later dismissed the charge that J.G. knowingly struck a law enforcement officer and the officer clarified uncertainty about whether J.G. knew she was an officer.
The appellate court agreed the trial court erred in excluding the audio for refreshing recollection but held the error harmless and affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an audio-recorded deposition may be used to refresh or impeach a witness’s recollection	J.G.: rules allow refreshing with a “writing or other item” and impeachment by prior statements regardless of form; audio should be permitted	State: trial court has discretion and raised practical concerns about playing excerpts and context in court	Court: Error to deny use of the audio, because Evidence Code permits "writing or other item" and prior statements need not be written; but error was harmless
Whether playing an audio tape must be done outside jury presence (or bench judge leaving bench)	J.G.: sought a bench-review use; implied audio could be used consistent with safeguards	State: cited Hill and concerns about prejudice if played before factfinder	Court: Playing audio to refresh should generally occur outside jury presence, but in a bench trial judge need not leave the bench and is presumed to disregard inadmissible evidence
Whether the excluded evidence was prejudicial enough to require reversal	J.G.: exclusion impaired impeachment and could affect outcome	State: subsequent developments (officer’s clarification, dismissal of related charge) made exclusion harmless	Court: Held error harmless because officer later expressed uncertainty and the contested testimony was not material to convictions affirmed

Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978) (audio tapes can refresh memory but should be used outside jury presence to avoid prejudicial introduction)
Guzman v. State, 868 So.2d 498 (Fla. 2003) (trial judge as factfinder is presumed to disregard inadmissible evidence)
United States v. McKeever, 271 F.2d 669 (2d Cir. 1959) (discussing use of recordings to refresh witness memory outside jury presence)
Kimble v. State, 537 So.2d 1094 (Fla. 2d DCA 1989) (prior inconsistent statements need not be reduced to writing to be used for impeachment)