Federal Evidence Review

Admitting as a witness’s past recollection recorded under FRE 803(5) a police videotape of a detective’s interview of the witness in which she described defendant’s possession and use of a gun; the witness’s testimony at trial satisfied the rule’s “predicates” that (1) she was no longer able to fully testify as to the subject of the video, (2) the video accurately represented her knowledge at the time it was made and was accurate, and (3) the video was an accurate record of her statements; even if allowing the deliberating jury to see the video twice was an error, it was harmless, in United States v. Jones, 600 F.3d 1247 (11th Cir. April 2, 2010) (No. 08-16999)

As explained by its Advisory Committee Note, FRE 803(5) reflects a hearsay exception “generally recognized” and “long … favored by the federal courts.” As codified by the FRE, the rule specifies that the recollection is not admitted as an exhibit unless the party “adverse” to the party proffering the recollection offers it in evidence. Absent this, the rule specifies that the recollection only be “read into evidence.” Is this restriction on the form in which the court receives the evidence part of the elements for its admission? In a recent case, the Eleventh Circuit explained the foundational elements of the past recollection recalled hearsay exception under FRE 803(5), but punted on the rule’s restrictions on the form in which the evidence is used by the court.

In the case, defendant Jones was charged with illegal gun and ammunition possession in shooting the victim Buskirk. Over three weeks after the alleged shooting, “Detective Von Lowenfeldt conducted a videotaped interview of sixteen-year-old Kelly Bigham (“Ms.Bigham”). In their conversation, Ms. Bigham informed the detective that she had sold a .38 revolver to Mr. Jones. She described how she and Mr. Jones drove to a nice area of town, where Mr. Jones shot a white man. After the interview, Ms. Bigham directed Detective Von Lowenfeldt to the street on which Mr. Buskirk lived, and she demonstrated how Mr. Jones got out of the car, fired at the man, and got back into the car.” Jones, 600 F.3d at 1253. Although he was convicted in his first trial on the charges, the case was reversed and remanded because of the trial judge’s “unduly coercive” instructions. United States v. Jones, 504 F.3d 1218, 1219-20 (11th Cir. 2007)

During his retrial on the charges several years later, the prosecution’s questioning of the witness disclosed that she now lacked a “clear and distinct recollection in [her] response to the question[s]” by the detective about the defendant and the .38 revolver. While the government sought to introduce the videotape of her interview with the detective as former testimony (FRE 804(b)(1)) or as a statement against interest (FRE 804(b)(5)), the trial judge refused, apparently because the witness was not “unavailable” as required by the FRE 804 hearsay exceptions. Rather, the trial judge admitted the video as the witness’s past recollection recorded under FRE 803(5).

The Eleventh Circuit affirmed the admission of the video, but noted that the government’s “efforts” to show compliance with FRE 803(5) requirements “were lackluster at best.” The circuit readily found these requirements in the “handful of responses” made by the witness to the prosecutor’s examination at trial. The FRE 803(5) requirements included a showing that:

1. The witness lacked a “clear and distinct recollection” of the subject matter of her interview with the detective. The witness testified that “[s]he could not remember that she sold Mr. Jones the .38 revolver ‘in the end of April of 2004.’ She also could not recall Mr. Jones making any statements about the gun,” so that it was clear that the district court clearly did not “abuse[] its discretion in concluding that Ms. Bigham lacked sufficient memory to testify to the subject matter of the video.” Jones, 600 F.3d at 1262.
2. The witness could “verify the contents of the past statement” and that it accurately reflected the witness’s “ knowledge and recollection at the time” of the statement.” As noted by the circuit, the witness “testified that it was easier to remember the events described in the videotape at the time of the interrogation than on the date of the trial. When the government asked whether the things said were true and accurate to the best of her knowledge, Ms. Bigham responded, ‘If that was what was said then, that’s what I remember then, what was just in the video.‘” Jones, 600 F.3d at 1262 (citing Lopez v. United States, 373 U.S. 427, 448 n. 1 (1963) (Witness affirms “that he knew it to be true at the time.”)).

1. The witness testified the video was an accurate record of her statements. At the second trial, the witness responded to a question “as to whether the video was an accurate record of her statements to Detective Von Lowenfeldt, Ms. Bigham acknowledged, at a minimum, “that’s me talking” on the video. Jones, 600 F.3d at 1262 (footnote omitted).

The Eleventh Circuit also rejected the defendant’s confrontation clause challenge to the videotape’s admission. Because the witness was there “present at trial and subject to unrestricted cross-examination” there was no violation of the defendant’s Sixth Amendment right to confront witnesses.

However, the circuit did acknowledge a matter of concern. FRE 803(5) “explicitly states that ‘[i]f 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.‘” Yet, as it deliberated, the jury “submitted a note asking to again watch Ms. Bigham’s interrogation video. The following day, the district court permitted a second viewing. The district court denied Mr. Jones’s request that Ms. Bigham’s cross-examination be read to the jury as well.” Jones, 600 F.3d at 1264 (citing FRE 803(5)). The circuit rejected defense arguments that this second playing of the video for the jury “essentially received the video as an evidentiary exhibit, in direct contravention of” FRE 803(5).

Assuming arguendo that it was an error to present the video to the jury a second time, it was harmless explained the circuit. Rule 803(5). “Though Ms. Bigham’s testimony was important to the government’s case,” acknowledged the circuit, “the second presentation of the video provided only cumulative evidence. The jury watched the entire filmed interview during trial. … even absent a second viewing of the video, the government’s case against Mr. Jones was strong. The record also demonstrates that the district court’s refusal to read Ms. Bigham’s cross-examination testimony did not affect the outcome of the case. Forty minutes after the second viewing, the jury sent the judge a note stating that ‘[t]he video did not change any positions.‘” Jones, 600 F.3d at 1264.

The circuit’s harmless error analysis in Jones avoided directly addressing the applicability of the FRE 803(5) requirement that the evidence not be received as an exhibit unless offered by the opponent of the evidence. Only a few years after adoption of the FRE two circuits addressed application of the “read into evidence” requirement of the rule. The Fifth Circuit described the purpose of this requirement as preventing the trier of fact from being “overly impressed” by the recorded recollection. United States v. Judon, 567 F.2d 1289, 1294 (5th Cir. 1978). Before that, the Seventh Circuit observed that in considering a calendar as a witness’s recorded recollection, the court could have “read” it into evidence, but the court’s failure to do so was an error that was de minimis. The difference between reading the recollection and actually introducing it into evidence was “too small to be a reversible error in a trial of this complexity.” United States v. Ramsey, 785 F.2d 184l, 192 (7th Cir. 1986).