State v. Spaulding (2013-208)
[Filed 08-Aug-2014]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
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No. 2013-208 |
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State of Vermont |
Supreme Court |
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On Appeal from |
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v. |
Superior Court, Windham Unit, |
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Criminal Division |
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Allen Spaulding |
March Term, 2014 |
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John P. Wesley, J. |
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Ashley A. Harriman, Windham County Deputy State’s Attorney, Brattleboro, for
Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Kerry DeWolfe, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Robinson and Crawford, JJ., and Tomasi, Supr. J.,
Specially Assigned
¶ 1. CRAWFORD, J. Defendant Allen Spaulding appeals from his conviction on domestic assault charges following a jury trial. The issues on appeal are the admission of the complainant’s written statement as past recollection recorded and claims of insufficiency of the evidence and improper closing argument. We reverse on the hearsay issue.
¶ 2. The following facts are drawn from testimony of witnesses and exhibits introduced at trial. On July 30, 2012, defendant and the complainant spent the day at a lake. They had been in a live-in romantic relationship for the previous year and a half, although the complainant had recently ordered defendant out of her home and obtained a no-trespass order against him.
¶ 3. Over the course of the day, the complainant drank heavily. She described herself as “trashed” when the couple returned to her home in the evening. The complainant called 911 at 11:45 p.m. seeking assistance. A portion of the 911 recording was admitted into evidence and played for the jury. In the recording, the complainant told the operator that she was calling about a domestic incident. She stated that she had woken up on the floor. She believed her jaw was broken. She said that defendant had been in her house despite the no-trespass order and that he “had me around the neck.” She said she was bleeding and had lost consciousness.
¶ 4. The first police officer to arrive found the complainant bleeding from a cut lip. While the officer was present, defendant called the complainant on her cell phone. When the officer learned that defendant was nearby, he left the complainant’s home to arrest him. On the officer’s return to the apartment, he and the complainant finished drafting a written statement, which she signed under oath.
¶ 5. The statement says that defendant came to complainant’s home at 7:30 pm looking for “money, cigarettes, food etc.” It states that after an argument, defendant grabbed the complainant by the throat, dragged her, punched her in the mouth, and threatened to kill her before taking her money and cigarettes. She complained of severe pain in her jaw, lower back, head, and mouth.
¶ 6. Exactly who wrote the statement remains disputed. At trial, the complainant testified that she had no recollection of writing the statement and did not believe that it looked like her handwriting. She testified that she was extremely intoxicated and recalled nothing of the evening except being taken to the hospital by ambulance. She agreed that the signature was hers. She testified that she would not sign a statement if she did not believe it to be true, and would not lie to a police officer. The officer testified that he helped the complainant as she wrote the statement. The statement is signed under oath and notarized by the officer.
¶ 7. Defendant was charged with aggravated domestic assault, domestic assault, and unlawful trespass. The Windham Criminal Division conducted a one-day jury trial on January 15, 2013. Over defendant’s objection, the court admitted the complainant’s written statement into evidence as “past recollection recorded” under Vermont Rule of Evidence 803(5). In conformance with the requirements of Rule 803(5), the statement was read aloud to the jury but not sent into the jury room at the time of deliberations. At the close of the State’s case, defendant moved for judgment of acquittal on all three counts. The court denied the motion. Defendant was convicted on the domestic assault charges. The jury found him not guilty on the trespass charge. This appeal followed.
¶ 8.
On appeal, defendant argues that the evidence is insufficient to support
the verdict, that the trial court erred in admitting the complainant’s written
statement, and that the prosecutor’s statements during closing arguments asking
the jurors to put themselves in the victim’s shoes amount to plain error.
We begin with the sufficiency-of-the-evidence claim. In reviewing the
court’s denial of defendant’s motion for acquittal, we apply “an exacting
standard.” State v. Myers,
¶ 9.
Defendant was charged with two counts of first-degree aggravated
domestic assault. 13 V.S.A. § 1043. The aggravating circumstance
for one charge was defendant’s prior conviction of aggravated domestic assault.
Id. § 1043(a)(3). The second charge included an allegation
of “serious bodily injury to a family or household member” in violation of 13
V.S.A. § 1043(a)(1). As to the latter charge, defendant argues that
the evidence does not establish the element that defendant attempted to cause
serious bodily injury because the sole evidence to establish this was the
complainant’s statement to the 911 operator that defendant had her “by the
neck” and her prior recorded statement that she was “grabbed by the
throat.” Defendant claims that because both these statements were
admitted under hearsay exceptions the quality of the evidence is too thin to
support a conviction. In support of this argument, defendant relies on State
v. Robar,
¶ 10. The past recollection recorded admitted at trial supports the charge of aggravated assault. The written statement recounts that defendant came into the complainant’s apartment, grabbed her throat, punched her in the mouth, threatened to kill her, and caused severe pain to her lower back, head and mouth. It is not necessary, however, to make a determination of whether the statement meets the reliability standard set forth in Robar because, in this case, the conviction is supported by additional evidence beyond the past recollection recorded. The other evidence demonstrating that defendant attempted to cause or willfully caused serious bodily injury to the complainant included the 911 call, the responding officer’s testimony, and the physical evidence. During the 911 telephone call, the complainant stated that defendant had been in her house, defendant had her around the neck, she was bleeding and she lost consciousness.[1] The responding officer testified that the complainant was “sobbing [and] visibly upset” when he responded to the 911 call, the complainant was bleeding from a cut on her lip, blood was spattered on her shirt, and there were reddish marks on her throat. The State also introduced photographs depicting the injuries to the complainant’s lip and throat. Taken together, this evidence was sufficient to show that defendant attempted to cause or willfully caused serious bodily injury to the complainant. Therefore, the court properly denied defendant’s motion, and defendant is not entitled to acquittal.
¶ 11. Next, we address defendant’s argument that the complainant’s prior recorded statement was improperly admitted. In 1844, this Court adopted the English common-law rule permitting testimony from a witness based on his past written statements despite the absence of any current memory of the events.
There are many facts which no memory could possibly carry along, without the aid of memoranda; and when they are committed to writing the detail of the facts is dismissed from the memory, and they are the sooner forgotten, for the very reason that the writing is relied upon. All that is necessary in such a case is that the witness should have a general recollection of the transaction, and also that the memorandum was correctly made at the time it was made.
Mattocks v. Lyman, 16 Vt.
113, 117-18 (1844). At the federal level, this common-law rule was
codified among the hearsay exceptions as Federal Rule of Evidence 803(5).
Vermont subsequently adopted the federal rule in the Vermont Rules of Evidence
without alteration.[2]
State v. Paquette,
¶ 12.
Rule 803(5)’s exception for past recollection recorded is distinct from
the use of a writing to refresh recollection. See V.R.E. 612 (allowing
witness to use writing or object to refresh his memory at trial). In the
latter case, the evidence is the witness’s testimony based on a memory which
has improved through resort to some record or prior report. Past
recollection recorded, however, is substantive evidence of the events
described. If the statement meets foundational requirements, it is
admissible as a substitute for testimony based on the witness’s memory.
See State v. Lander,
¶ 13.
Rule 803(5) establishes three foundational requirements for
admissibility: (1) that the declarant once had knowledge of the events
described in the statement; (2) that he or she no longer has sufficient
recollection to testify fully or accurately about the events; and (3) that the statement
is “shown to have been made by the declarant or, if made by one other than the
declarant, to have been examined by the declarant and shown to accurately
reflect the declarant’s knowledge when the matters were fresh in his memory.”
Paquette,
¶ 14. There is no dispute in this case concerning the first two elements. The complainant was present during the events which gave rise to the criminal charges and therefore once had knowledge of them. She testified at trial that she had very limited recollection of the evening of the altercation due to excessive drinking. The parties disagree over whether there was sufficient evidence to meet the third requirement.
¶ 15. Defendant argues that the statement was created by the investigating police officer and neither made nor adopted by the complainant. He also argues that the statement should have been excluded because the complainant did not testify at trial that it correctly reflected her knowledge of the events.
¶ 16. The evidence at trial concerning the statement came from two sources: the complainant and the investigating police officer. The complainant testified that she was extremely intoxicated after drinking all day at the lake and had no memory of writing the statement. She testified that she had seen the statement and “I can tell you that it doesn’t even really look like my writing.” She was able to identify her signature at the bottom of the statement, responding “[i]t looks like my signature.”
¶ 17. The investigating officer testified concerning the statement and his own observations at the scene. He stated that when he arrived, he observed that the complainant had a cut lip and red marks around her neck, and that there were drops of what appeared to be blood on the sofa. He described the complainant as emotionally upset but not too intoxicated to complete a sworn statement. He stated that he assisted the complainant in writing the statement by telling her the type of information to include. He reviewed it with her and had her swear to it. He then notarized the statement. He found the written statement to be consistent with earlier verbal statements made to him by the complainant.
¶ 18. This evidence was sufficient to establish the foundational requirement that the statement was made or adopted by the witness. The dispute between the parties on appeal is whether the complainant wrote it or whether the handwriting is the officer’s. The dispute is immaterial since the complainant testified that the signature was likely to be hers. The evidence that she swore to the contents before the officer was uncontradicted. Whether she wrote the statement herself with assistance from the officer, as the State contends, or swore to the truth of a statement which he had prepared for her, as defendant argues, Rule 803(5) applies equally. See V.R.E. 803(5) (stating that statement must have been “made or adopted by the witness”). In either event, the trial court acted within the scope of its discretion in determining that the statement was the complainant’s.
¶ 19.
The final element of Rule 803(5) also requires evidence that the
statement accurately reflects the witness’s knowledge at the time she made
it. Paquette,
¶ 20.
Decisions in Vermont and elsewhere have divided on the question of
whether the witness must vouch for the reliability of her statement or whether
circumstantial evidence is an acceptable substitute. We first addressed
the issue in State v. Lander. In a brief memorandum decision, this
Court held that a prior written statement lacked sufficient foundation to be
admitted into evidence where “[a] review of the record indicates that the
witness did not adopt his prior statement as his own or aver that the statement
accurately reflected his knowledge at the time of its making.” 158 Vt. at
645,
¶ 21.
The Court returned to the issue in State v. Marcy,
¶ 22.
The Court divided three ways. A two-justice plurality affirmed the
admission of the statement on the ground that Rule 803(5) does not require
testimony from the declarant that the statement accurately reflected her recollection
of the events. Id. at 95-96,
¶ 23. The Marcy plurality relied on United States v. Porter, 986 F.2d 1014 (6th Cir. 1993), in which the declarant was present at trial but unable or unwilling to testify to the accuracy of her prior statement. The Sixth Circuit affirmed the district court’s admission of a prior written statement by the recalcitrant witness, who was described by the trial judge as “disingenuous” and “evasive,” on the basis of circumstantial factors indicating trustworthiness. Id. at 1017. These factors included the signing of the statement under penalty of perjury and the inclusion of “considerable detail which was internally consistent, as well as consistent with other uncontradicted evidence which had already been admitted.” Id. The trial judge also considered the fact that the witness had given the statement at a time when she was fearful of reprisal by the defendant. Id. The Sixth Circuit reasoned that:
Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration, as was done by the district court in this case, of factors indicating trustworthiness, or the lack thereof.
Id. Porter is the leading case for the position that the witness need not testify to the accuracy of his or her prior statement in order for it to be admissible under Rule 803(5) if reliability can be established through other foundational evidence.
¶ 24.
The most recent case adopting the alternative position, which requires
that the witness vouch at trial for the accuracy of his or her prior statement,
is Polite v. State,
¶ 25.
We are persuaded by Justice Dooley’s dissent in Marcy and by the Polite
decision. We return today to the rule expressed in Lander that a
specific avowal of the reliability of the recorded recollection from the
declarant herself is necessary for admissibility. We reject the plurality
opinion in Marcy that the necessary foundation can be established by
finding the prior statement to be consistent with other evidence or upon
testimony that the witness generally tells the truth. See CTS Corp. v.
Dynamics Corp. of Am.,
¶ 26. We start our analysis by considering the shortcomings of the “totality-of-the-circumstances” rule in this particular case. Only three circumstances supported the State’s position that the statement was a reliable reflection of the complainant’s memory. The first was the complainant’s testimony at trial that she would neither “sign something that [she] had written that [she] didn’t believe was true,” nor would she lie to the police. The second was that she signed the statement under oath. The third was that she was injured in a manner consistent with her report to the 911 operator that defendant “had [her] around the neck.”
¶ 27. The meager quality of these indicia of reliability illustrates the difficulty with the totality-of-the-circumstances rule. There may be witnesses who will brazenly testify in court that they are in the habit of lying, especially to the police, but they are surely small in number. People are more likely to describe themselves as mainly honest. In court as elsewhere in life, we discount such general claims of truthfulness and honesty. See V.R.E. 608(a) (stating that evidence of truthful character is admissible only after it has been attacked); C. Kilpatrick, Nixon Tells Editors, “I’m Not a Crook,” Wash. Post, Nov. 18, 1973, at A01.
¶ 28. Courts have divided on whether testimony from the witness about his or her habitual inclination towards truth-telling is sufficient to establish the reliability of a specific statement. Compare Walker v. Larson, 169 N.W.2d 737, 742 (Minn. 1969) (stating that “general moral attitude” is typically sufficient to establish reliability), with Hodas v. Davis, 196 N.Y.S. 801, 802-03 (N.Y. App. Div. 1922) (holding testimony that witness had never before signed a false statement to be insufficient). The skeptical view of such statements is best captured by Mueller and Kirkpatrick in their discussion of Rule 803(5):
If the witness cannot recall making the statement despite the fact that the occasion was unique or nonroutine in her life, because of the passage of time or for indeterminable reasons rooted in the transience of memory, or perhaps in psychology or interest, the question arises whether it is enough if she testifies simply that she would not have signed or prepared it if it were not true. Probably even this tepid endorsement is enough if nothing better may be had, since it provides testimonial support. It is only a claim of general honesty, however, that sheds faint circumstantial light and is the kind of thing nearly anyone would say almost any time. Accepting such an endorsement reduces the accuracy requirement, and judges should have leeway to exclude statements offered on this basis almost as a matter of instinct if they doubt the substance of the endorsement, and some decisions require exclusion in this situation.
4 C. Mueller & L. Kirkpatrick, Federal Evidence § 8.76 (4th ed. 2014) (footnotes omitted).
¶ 29.
In the face of such faint praise, we cannot accept a claim of general
honesty as the basis for admission of the prior statement. We interpret
our version of Rule 803(5) to require specific evidence of reliability from the
declarant. This could include testimony that the declarant is confident
that she was telling the truth on that particular occasion. See, e.g., United
States v. Patterson,
¶ 30. For these reasons we also reject the position of the two concurring justices in Marcy who concluded that the testimony from the complaining witness that she usually told the truth was sufficient to establish the reliability of the statement. Such a description of a habit or practice of honesty—particularly as the witness perceives it in herself—is an insufficient basis for admission.
¶ 31. Similarly, without minimizing the solemn importance of oath-taking, the notarization of a statement by an intoxicated person in the middle of the night provides scant assurance of its truth. See 2 Brown, supra, § 283, at 299 (“An assertion of [a statement’s] accuracy in the acknowledgment line of a written statement or such an acknowledgment made previously under oath is not sufficient.”).
¶ 32. With respect to the third factor—the internal consistency of the State’s evidence or totality of the circumstances—we are faced with the problem of confirmation bias. Having formed an idea, people, including judges, are notoriously prone to pick and choose among the evidence which supports their initial view.[3] This tendency is particularly marked in the application of multi-factorial “balancing tests.” For this reason, the U.S. Supreme Court was critical of the use of the “reasonably reliable” test for the admission of hearsay in the context of the Confrontation Clause:
By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to [the constitutional] design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like [Sir Walter] Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.
Crawford v.
Washington,
¶ 33. An evidentiary test phrased as “the totality of the circumstances” positively invites selective consideration of the facts needed to support admissibility. This case is a good example. Photographs of the injuries demonstrate that the complainant suffered a cut lip, but they tell us little about how it happened. They are consistent with injury inflicted by defendant as well as with other explanations. Similarly, defendant’s presence in the apartment is consistent with an assault, but it does not prove it. The judge’s search for circumstantial evidence of reliability can become little more than a search for confirmation of an unexpressed decision to admit the statement. We will find ourselves looking through the wrong end of the telescope—reducing our field of view and focusing only on the assumed conclusion of guilt—if the bare fact of injury lays a foundation for the admission of an out-of-court statement.
¶ 34. We also find support for the Lander position in the structure of the evidence rules themselves. There are three principal exceptions to the general prohibition against hearsay for prior statements that are admissible without regard to the state of mind of the declarant.[4] In addition to the past recollection exception, prior statements by the witness and former testimony are admitted on the proper foundation. See V.R.E. 801(d)(1), 804(b)(1). The two latter exceptions are limited by conditions which afford an opportunity for cross-examination. See, e.g., V.R.E. 801(d)(1) (permitting prior statement by declarant to be admitted if “declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement”). Similarly, the rule allowing the use of prior inconsistent statements for impeachment contains strict limits against the admission of the statement itself. See V.R.E. 613(b) (stating that extrinsic evidence of prior inconsistent statement is generally not admissible).
¶ 35.
In contrast, the admissibility of past recollection recorded is
remarkable in its potential breadth. Any statement in any form is subject
to the exception. The only real limits are the absence of a current
memory and a positive statement from the declarant that the events were fresh
in her mind and reliably recounted in her prior statement. The
opportunity to test this testimony through cross-examination may be limited,
but it is present when the declarant provides the foundational testimony for
her statement. If testimony from the declarant is replaced by resort to
other evidence in the case consistent with guilt or to general platitudes that
she is in the habit of telling the truth, the past statement may come in
without being challenged in any meaningful way. As Justice Dooley pointed
out in his dissent in Marcy, this approach would effectively transform
Rule 803(5) into a “catch-all exception” for hearsay. Marcy, 165
Vt. at 106,
¶ 36. We recognize that the rule as we now define it presents obstacles to cases in which victims are prone to recant or are fearful of retaliation. These are very real problems in the criminal justice system. They are not solved, however, by expanding the exception for past recollection recorded to allow the admission of virtually any statement by a person who testifies that she is normally truthful and has no current memory of the events described.
¶ 37.
As the proponent of the evidence at issue, the State had the burden of
proving its admissibility. State v. Goodnow,
¶ 38.
We can affirm a conviction despite an erroneous evidentiary ruling if
the error was harmless beyond a reasonable doubt. See State v.
Oscarson,
Reversed and remanded for further proceedings consistent with this decision.
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FOR THE COURT: |
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Associate Justice |
¶ 39.
TOMASI, Supr. J., Specially Assigned, concurring. I
agree with the majority that we should reject the totality-of-the-circumstances
test set out in the plurality opinion in State v. Marcy,
I. Vermont Rule of Evidence 803(5)
¶ 40. My review of the Reporter’s Notes to V.R.E. 803(5), Vermont’s common law, and the views of commentators, leads me to conclude that the drafters of Rule 803(5) did not intend to allow admission of prior recorded recollections based on an assessment of the totality of the circumstances. Decisions from elsewhere endorsing that test have done so without consideration of the specific history of the Vermont Rule.
¶ 41.
United States v. Porter,
¶ 42.
While the language of Vermont Rule 803(5) is nearly the same as Federal
Rule 803(5),[7]
the advisory notes accompanying the two rules differ. See State v.
Oscarson,
¶ 43.
An examination of those decisions reveals that, historically, Vermont
required some type of in-court confirmation from the author of a recorded
recollection that the record was correct. In Downer v. Rowell, 24
Vt. 343 (1852), and Mattocks v. Lyman,
It is enough prima facie if he swears to his signature, and that it would not have been affixed but for the purpose of attestation.
The old notion that the witness must be able to swear from memory is pretty much exploded. All that is required, is, that he be able to swear that the memorandum is correct.
Id. at 428 (citations
omitted); see Alvord v. Collin,
¶ 44.
Any doubt as to whether Vermont intended Rule 803(5) to be a relaxation
of the common-law standard is answered by State v. Paquette,
¶ 45. Vermont’s approach of requiring the proponent of a prior statement to vouch for its accuracy was consistent with the common law in general. As set out in Wigmore:
The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. . . .
. . . .
. . . If the witness can say, “I distinctly remember that when I made or saw this memorandum, about the time of the events, I was then conscious of its correctness,” his verification is satisfactory.
[]But if he relies, not on a present recollection of his past state of mind, but on other indications, such as a habit, a course of business, a check-mark on the margin, or merely the genuineness of his handwriting, then the certainty is of a lower quality, though still satisfactory for most practical purposes. In general, it is conceded that when the witness’ certainty rests on his usual habit or course of business in making memoranda or records, it is sufficient.
3 J. Wigmore, Evidence § 747, at 97-98 (1970) (footnotes omitted); see also D. Binder, Hearsay Handbook § 15:5 (4th ed. 2013) (“An important prerequisite to admission of recorded recollection is that the witness vouch for its accuracy. . . . At least this was the general rule prior to the enactment of the Federal Rules of Evidence.”).
¶ 46.
As a result, even if the witness had no present recollection of
recording the event, his or her testimony before the factfinder that the
recorded recollection was truthful provided sufficient justification for
admission of the statement. While the opportunity for cross-examination
may not have been extensive in light of the failed memory, the witness was
still subject to some questioning. She may have been examined about
inconsistencies within the recorded recollection or between the recorded
recollection and other evidence. She could have been examined as to any
bias and as to any other area potentially relevant to her credibility.
Compare J. Bellin, Circumventing Congress: How the Federal Courts Opened the
Door to Impeaching Criminal Defendants With Prior Convictions, 42 U.C.
Davis L. Rev. 289, 296-97 (2008) (explaining how early common law’s preclusion
of testimony from witnesses who had been convicted of felonies and “infamous
crimes” evolved into a standard allowing impeachment based on such
convictions), with V.R.E. 609 (allowing impeachment by certain past criminal
convictions), and United States v. Penny,
¶ 47.
Accordingly, I agree with the majority that there needs to be some
direct affirmation from the witness that the recorded recollection is truthful
and accurate.[9]
I also agree that testimony that the witness is “generally honest” is
insufficient—standing alone—to admit the prior recollection. Where I
respectively depart from the majority is the narrow instances where the witness
can apply his character or trait to the circumstances of the recorded
recollection and proceed to testify as to his belief that the statement itself
is truthful and accurate. If he is able to testify to that, it meets the
requirement that the witness “adopt his prior statement as his own or aver that
the statement accurately reflected his knowledge at the time of its
making.” State v. Lander,
¶ 48.
In my mind, the key to admissibility under Rule 803(5) is the witness’s
confidence and verification under oath—whether based on memory, habit, trait,
practice, marking, or firm conviction—that, under the circumstances in which
the statement was made, she would have been truthful in making it. Where
there is a significant loss of memory, the witness simply cannot testify as to
the actual facts underlying an event. Pursuant to Rule 803(5), she
relies, instead, on a contemporaneous record concerning the event that she is
confident is accurate. The witness adopts that recorded recollection, it
is read to the factfinder, and it substitutes for her memory as to that part of
her testimony. Polite v. State,
¶ 49.
As noted above, such an approach is consistent with prior Vermont and
related law as endorsed in the Reporter’s Notes to Rule 803(5). See Davis,
¶ 50. It is also in keeping with the views of a number of commentators. Wigmore provides:
Is it enough that the witness (as is usual with attesting witnesses to a document) merely recognizes his handwriting and knows that he would not have written or signed without believing the record to be correct? Here the witness is really calling to his aid, not his specific business custom, but his general moral attitude; but, as a rule, the indication should be and is treated as sufficient.
3 Wigmore, supra, § 747, at 99. The Federal Practice and Procedure treatise is similar:
The witness may testify either that he remembers making an accurate recording of the event in question which he now no longer sufficiently remembers, that he routinely makes accurate records of this kind, or, if the witness has entirely forgotten the exact situation in which the recording was made, that he is confident from the circumstances that he would not have written or adopted such description of the facts unless that description truly described his observations at the time.
30C K. Graham, et al., Federal Practice and Procedure § 7046 (2014) (emphasis added). As is Weinstein:
[T]he foundation for their own record must include testimony either that the witness recalls having made an accurate record or that, even though the witness does not now recall his or her state of mind when making or adopting the record, the witness would not have made or adopted it without knowing it was correct.
5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 803.07[3][c], at 803-53 to 803-54 (2d ed. 2013) (emphasis added).
¶ 51.
Case law generally supports that approach as well. Polite v.
State, relied upon by the majority, would admit statements under Rule
803(5) if: “(1) although the witness does not recall the statement, the witness
has a habit of recording such matters correctly or (2) the witness
believes the statement is correct because the witness would have been truthful
in providing the statement.”
¶ 52. At base, admission of recorded recollections under Rule 803(5) relies on dual claims of honesty of the testifying witness. The witness who testifies that she remembers making a prior statement and intending to be truthful at that time, relies on her honesty on the stand and at the time she made the statement. A business owner who claims her habit or practice was to make specific entries only upon reviewing inventory stores, relies on her honesty at trial and when the entry was made. I fail to see a difference in kind between those situations—which the majority endorses—and the circumstance where a person is able to swear at trial that, based on her character and beliefs, she would have been truthful in giving a prior statement to the police, to a grand jury, or at a deposition.
¶ 53.
Unfortunately, people lose their memories for many reasons. They
may suffer from amnesia, have Alzheimer’s disease, take powerful and
debilitating medications, or incur a traumatic brain injury. If they are
still able to testify in open court as to their honest belief that a statement
they previously made was truthful, I believe that should be sufficient to
sustain its admission under Rule 803(5). As the court stated in Walker
v. Larson: “to exclude such a record when honestly made would be to
reject the best and frequently the only means of arriving at the truth.”
¶ 54. I reach that conclusion cognizant that the endorsement provided by the witness is not the only indicator of the prior statement’s accuracy. Both the Federal Advisory Committee Notes and the Vermont Reporter’s Notes to Rules 803(5) provide that a recorded recollection’s contemporaneousness guarantees its accuracy. See F.R.E. 803 advisory committee’s notes (“The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them.”); Reporter’s Notes, V.R.E. 803 (“Contemporaneousness is the guarantee of [a recorded recollection’s] trustworthiness.”). Given that additional assurance of reliability, a witness’s statement that she would not have signed or made a statement unless it was truthful, or a similar affirmation, should be enough to allow admission of the statement.[12] It would then be up to the finder of fact to assess the weight to give the recorded recollection in light of all of the circumstances and other evidence in the case.
II. Harmless Error
¶ 55. The trial court noted that admitting complainant’s statement was a “close” call, even under Marcy’s totality-of-the-circumstances analysis. The question of admissibility under the test I would adopt is even closer. On the one hand, complainant did not merely state that she is an honest person; she actually tied her claim of honesty directly to the statement at issue in the case. From a review of the transcript, it is apparent that she was either holding a copy of the statement or had it with her on the witness stand. She first identified as her own the signature that accompanied the notarized statement. The following colloquy ensued:
[Q] Would you sign something that you had written that you didn’t believe was true?
A. No.
Q. Would you lie to the police?
A. No.
THE COURT: I’m sorry, what was your answer to that?
THE WITNESS: I wouldn’t lie to the police.
On cross-examination, she re-affirmed that she would never lie to the police.
¶ 56. On the other hand, the witness also testified that her ability to accurately record what happened on the day in question was severely impaired. The witness candidly admitted that she was not only inebriated, but polluted with alcohol. On the day complainant wrote the statement, she claimed to have consumed a gallon of whiskey and two thirty packs of Budweiser. By her own admission, she had been drinking all day in the hot sun, was “extremely drunk,” “trashed,” and “a train wreck.” She was also on medication. Based on those considerations, she conceded that the statement might not have been completely accurate.
¶ 57.
As noted above, the trial court employed an improper standard in
assessing the admissibility of the complainant’s prior recorded
statement. In light of the circumstances outlined in the preceding
paragraph, I cannot with confidence say beyond a reasonable doubt that the
court would have admitted the statement had it employed the standard I propose
today. The complainant vouched for her truthfulness in making the
statement but also gave cause for serious doubt as to the statement’s
accuracy. Cf. United States v. Edwards,
¶ 58.
Because I cannot conclude as a matter of law in this case that the
statement was admissible under the correct standard, the error in applying the
improper standard was not harmless. See State v. Carter, 164 Vt.
545, 553,
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Superior Judge, Specially Assigned |
[1]
The Robar holding that the State cannot meet its burden of proof based
solely on a hearsay statement unless there are indicia of reliability is
limited to those hearsay statements admitted as prior inconsistent statements
or as past recollections recorded, and does not extend to evidence admitted
under other hearsay exceptions.
[2] Vermont Rule of Evidence 803(5) provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Notes
[3] See, e.g., Francis Bacon, Advancement of Learning and Novum Organum 320-21 (J.E. Creighton ed., Colonial Press 1900) (1620) (“The human understanding, when any proposition has been once laid down . . . forces everything else to add fresh support and confirmation; and although most cogent and abundant instances may exist to the contrary, yet either does not observe or despises them, or gets rid of and rejects them by some distinction, with violent and injurious prejudice, rather than sacrifice the authority of its first conclusion.”).
[4] The majority of hearsay exceptions or non-hearsay statements such as admissions, excited utterances, or present sense impression are deemed to be reliable due to the internal mental experience of the declarant. V.R.E. 801(d)(2), 803(1), (2). Others come in as matters of business or official routine. See, e.g., id. 803(6) (allowing admission of business records).
[5] In the course of closing, the prosecutor stated the following:
Finally, you have [complainant’s] testimony. Think about, if you can, how you would feel if you were asked to come into a courtroom and talk about something like this in front of twelve strangers. Think about how you would feel if you were in that position. You were able to hear what she was able to remember today on the stand. Think about if something like this had occurred to you—had happened to you, if you were in this person’s shoes, would you want to remember every detail? Is this the type of thing that you would go over in your mind, you would commit to memory? Or would you just want it to be in the past?
We note that the prosecutor’s exhortation to the jury to place themselves in the shoes of the complainant was improper. It was not the subject of an objection by defendant. We do not consider whether it met the criteria for reversal on plain-error grounds.
[6] I also join the majority’s determinations with regard to defendant’s sufficiency-of-the-evidence argument and the prosecution’s repeated and inappropriate invocation of “golden rule” comments in its closing and rebuttal arguments.
[7] Federal Rule of Evidence 803(5) was amended in 2011 for stylistic purposes. See F.R.E. 803, cmt. 2011 amend. These stylistic amendments have not been incorporated in Vermont Rule 803(5).
[8]
The fourth decision referred to in the Reporter’s Notes, Pinney v. Andrus,
[9]
That conclusion is in tension with the Court’s ruling in Paquette.
[10]
The majority suggests that the fact that a writing is signed under oath is
insufficient to meet the admissibility demands of Rule 803(5). Ante,
¶ 31. I believe the citation supporting that proposition was concerned
with the idea that a document that has been signed under oath should not be
able to establish its own admissibility without testimony from its
author. See 2 Brown, supra, § 283, at 299 (explaining that witness
must acknowledge accuracy of statement at trial and an assertion of accuracy on
the statement is not sufficient). Consistent with Davis, if
the witness examines the jurat and can testify that she would not have signed a
statement under oath unless she was confident that it was accurate, it should
be admissible.
[11] Given the multi-part test of admissibility under Rule 803(5) and the fact that it is only applicable in cases where a witness’s memory is unable to be refreshed by the prior statement, see V.R.E. 612, I do not share the majority’s concern that extending Rule 803(5) to such situations would amount to a catch-all exception to the hearsay rule. The exception here is limited and well cabined.
[12]
Of course, each witness’s endorsement would need to be examined
carefully. Some witnesses may testify with confidence as to the veracity
of the recorded recollection. Others may testify with less fervor as to
the truthfulness or accuracy of the prior statement. See Marcy,