116 So. 3d 270
Fla.2013Background
- Polite challenges the Fifth District's reliance on a past recollection recorded exception to admit Levine's sworn statement under section 90.803(5).
- The Fifth District held that the statement could be admitted without the declarant's testimony that the statement was accurate, relying on a totality-of-the-circumstances approach.
- The Florida Supreme Court adheres to the rule that the witness must testify to the accuracy of the recorded recollection for admissibility.
- Levine testified inconsistently about reading the statement; the court read the statement into evidence but required proper foundation.
- The Court quashes the Fifth District's decision and remands for proceedings consistent with the opinion, reaffirming the need for a proper foundation including accuracy.
- Dissent argues there is no express conflict among districts to justify discretionary jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must a witness attest to accuracy for 90.803(5)? | Polite: accuracy must be attested by the declarant. | Polite: non-testimonial showing suffices under totality. | Yes; witness must attest to accuracy. |
| Is a totality-of-circumstances approach valid for 90.803(5) accuracy? | Polite favors totality-of-circumstances to admit. | Polite adopts a formal foundation with explicit accuracy attestation. | No; not valid; requires explicit accuracy attestation. |
| Was Polite's challenge to foundation properly preserved for review? | Polite preserved the objection to foundation. | Fifth District held the claim not properly preserved. | Preservation inadequate; decision remanded on proper grounds. |
Key Cases Cited
- Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010) (requires witness to attest to accuracy of past recollection)
- Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004) (requires accuracy foundation for recorded recollection)
- Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003) (witness must vouch for accuracy; foundational requirement)
- Garrett v. Morris Kirschman & Co., 336 So.2d 566 (Fla. 1976) (admission via contemporaneous writing and witness accuracy)
- United States v. Porter, 986 F.2d 1014 (6th Cir. 1993) (admissibility guided by trustworthiness; no strict method required)
- Middleton v. State, 426 So.2d 548 (Fla. 1982) (memorandum must reflect fresh memory when used as record)
- Volusia County Bank v. Bigelow, 83 So. 704 (1903) (historic basis for contemporaneous writings admissibility)