Kenneth Parker v. Reda, C.O., Norfleet, C.O., Krusen, Sgt. & Rita A. Brannen, and Estate of Charles Harrison, Sing Sing Corr. Fac. & C. Grainer, Supt.Kenneth Parker v. Reda, C.O., Norfleet, C.O., Krusen, Sgt. & Rita A. Brannen, and Estate of Charles Harrison, Sing Sing Corr. Fac. & C. Grainer, Supt.
Kenneth Parker’s suit under
On appeal, Parker argues that the district court abused its discretion under
DISCUSSION
District courts exercise broad discretion in making evidentiary rulings. This Court will order a new trial only if the introduction of inadmissible evidence was “a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that ‘we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.’ ”
Luciano v. Olsten Corp.,
I
concern[ ] a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, [and be] shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.
Before the Krusen memorandum could be read into evidence, a showing was required that (1) Sgt. Krusen’s memory of the events detailed in the memorandum was sufficiently impaired; (2) he prepared or adopted the memorandum at or near the time of the events; and (3) at the time he prepared or adopted it, it correctly reflected his knowledge of the events.
See id.; Bank of Brussels Lambert v. Credit Lyonnais,
It is undisputed that, at the time of trial, Sgt. Krusen had no present recollection of the May 23, 1999 incident, and that the first of these requirements was therefore satisfied. Moreover, given that the memorandum bore the signature of Sgt. Krusen and was dated the day of the incident, we think the following excerpts from Sgt. Krusen’s testimony are adequate to satisfy the second and third requirements:
Q. Based on your reading of [the memorandum] is that a document that you yourself wrote?
A. Yes it is.
Q. And based upon your reading of that document at the time did you in fact have personal knowledge of what occurred during that incident?
A. Yes.
* * * * *
[Q.] Did you, without describing this document, sir, did you write it?
A. Yes, I did.
Q. And did you write it at or about the date that it bears?
A. Yes, I did.
Q. Does that document reflect your knowledge of the event as of the date that it bears?
A. Yes, it does.
‡ % % # %
Q. And do you have reason to believe that this document correctly reflects your knowledge as of May 23rd, 1999?
A. Yes, I do.
Tr. at 136,143-45. 2
This testimony sufficiently supports the district court’s implicit findings that Sgt. Krusen prepared the memorandum on or about the date of the incident and that it accurately reflected his knowledge at that time, notwithstanding his inability (at the time of trial) to remember the event itself — or even his statement on cross-examination that he did not specifically remember writing the memorandum.
See
Jack B. Weinstein
&
Margaret A. Berger, Wein-stein’s Federal Evidence § 803(5)[01], at 803-181 (1996) (“[I]t is sufficient if the witness testifies that he knows that a record of this type is correct because it was his habit or practice to record such matters accurately.”);
see also
II
Parker argues that this ruling cannot be squared with the district court’s earlier ruling that the memorandum lacked sufficient indicia of reliability standing on its own — without Sgt Krusen’s testimonial sponsorship — to be admitted under the business records exception found in
The business records and recorded recollection exceptions to the hearsay rule are based on different rationales, and there is nothing inherently inconsistent about the admission, under 803(5), of evidence ruled inadmissible under 803(6).
See Trouble,
Business records are made rehable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience
of
business in relying upon them, or by duty to make an accurate record as part of a continuing job or occupation.”
Evidence of recorded recollection, on the other hand, is inadmissible unless a witness, who once had knowledge of what the record contains, testifies.
See
Because the evidence here was admitted as recorded recollection rather than as a business record, “[t]he accompanying testimony of the author minimize[d] the danger of unreliability by giving the trier of fact the opportunity to weigh [the author’s] credibility and consider the circumstances [likely to have] surround[ed] the preparation of the report.”
See United States v. King,
Ill
Parker also argues, in his reply brief, that it was particularly prejudicial for the jury to hear the concluding sentence of Sgt. Krusen’s report, which states that “[t]he amount of force used was minimal and only that much necessary to gain control of the inmate.” Parker contends that this is a conclusory statement on the ultimate issue facing the jury, namely whether the use of force was excessive or malicious, and that hearing this statement impeded the jury from fairly assessing the parties’ differing versions of the incident.
Although we think that the better practice would be to exclude such a conclusory statement, in this case its admission was harmless in light of two facts: (1) Sgt. Krusen was available for cross-examination concerning his credibility on this point (e.g., to be asked whether he had ever concluded in an incident report that there had been undue use of force); and (2) the record included opposing accounts of the use of force that were sufficiently detailed to permit the jurors to draw their own conclusions as to whether the force used was proper.
CONCLUSION
For the foregoing reasons, we AffiRM the judgment of the district court.