Eleventh Circuit concludes party failed to meet its burden to show a lack of memory under FRE 804(a)(3) after it's witness claimed not to remember making a particular statement; the proponent failed to show an inability to "remember the ‘subject matter,’" in Lamonica v. Safe Hurricane Shutters, Inc., _ F.3d _ (11th Cir. March 6, 2013) (No. 11-15743)
Statements of an unavailable witness are normally treated as hearsay unless an exception applies. FRE 804(a)(3) recognizes one exception when a witness “testifies to not remembering the subject matter” and one of the requirements under FRE 804(b) applies, such as a statement against interest under FRE 804(b)(3). The Supreme Court has also noted the hearsay exception based on loss of memory:The hearsay exception itself has generally recognized that a witness is ‘unavailable’ for purposes of the exception where through lapse of memory or a plea of the Fifth Amendment privilege, the State cannot secure his live testimony.California v. Green, 399 U.S. 149, 168 n.17 (1970). Under FRE 803(a)(3), the witness must testify. As the ACN to the rule note, "the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination." There are few published cases considering lack of memory under FRE 804(a)(3). A recent Eleventh Circuit decision concerned a challenge under the rule. The case involved an action to recover unpaid wages and liquidated damages under the Fair Labor Standards Act. The trial court excluded testimony of the company president and CEO about his conversation with an installer alleging that “one of the attorneys who represented the plaintiffs in both cases fabricated the overtime claims against” the defendants. The defendants sought to admit the installer's statement as a statement against interest under FRE 804(b)(3) based on his unavailability due to his lack of memory under FRE 804(a)(3). During cross-examination of the installer, defense counsel asked, in pertinent part:
Q. “You told [president/CEO] Mr. Leiva that the attorney said oh, let’s say you worked all these hours and we’ll get all these people involved and we’ll say that there was a big overtime violation here when there really wasn’t one. That’s what you told Mr. Leiva.” A. “I don’t remember. Maybe it is here, but I don’t remember.” Q. “You might have said that. You don’t recall. That rings a bell. You might have said something like that. You can’t deny it?” A. “I said I did not remember.”Lamonica, _ F.3d at _. After the jury and court awarded damages to the plaintiffs, on appeal the defendants challenged the exclusion of the proferred testimony. The Eleventh Circuit affirmed the exclusion, concluding that the defendants did not meet their burden to establish the witness was unavailable based on loss of memory. Lamonica, _ F.3d at _ (citing United States v. Acosta, 769 F.2d 721, 723 (11th Cir. 1985) (“The burden of proving the unavailability of a witness under Rule 804(a) rests with the proponent of the hearsay evidence.”)). As the circuit explained, FRE 804(a)(3) “applies only if the declarant is unable to remember the ‘subject matter,’ i.e., if ‘he has no memory of the events to which his hearsay statements relate’.” Lamonica, _ F.3d at _ (quoting N. Miss. Commc’ns, Inc. v. Jones, 792 F.2d 1330, 1336 (5th Cir. 1986)). The mere claim of not being able to remember the statement was insufficient. Lamonica, _ F.3d at _ (citing 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:112 (3d ed. 2007) (“The fact that the witness does not remember making the statements themselves is irrelevant.”)). The Lamonica case demonstrates how to show a lack of memory in order to establish witness unavailability -- the witness's testimony should indicate or admit an inability to recall the subject matter. A lack of memory about a particular statement is insufficient.
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