The defendant was pulled over for driving suspended and the officer found marijuana in the glove compartment.
The officer testified that the defendant admitted the marijuana was his.
On cross, the officer admitted that all he could remember the defendant stating several times "C'mon, gimme a break." He had no memory of any question on his part or any other statement by the defendant.
The judge, sua sponte, starts asking the officer if he is relying on his report and if he wrote the report the same time as he took the statement. The officer replies, "I wrote the report on the same day."
The defense tries to strike the evidence because the officer has no independent recollection. The prosecutor submits. The judge refuses to strike the evidence explaining that yes, the officer has no independent recollection but that the report was contemporaneous and therefore allowed into evidence as a hearsay exception.
Ken's analysis:
I think that in this case the exception fails the 4th test. Taken literally, we already know that the officer cannot remember the statement and therefore cannot vouch for the accuracy of the written memorandum. A truly horrendous interpretation of the 4th test could interpret it to mean that the officer has to testify that he files honest reports. As if an officer is going to say, "Well, I don't know judge. Every third report or so I liberally infuse the report with a series of lies." This renders the 4th test a farce and is pretty clearly not what it is meant to reach.
In fact, the 4th test is the most likely limiting factor for this exception. It would have to be a case by case analysis but there is a perfect example of what this exception is supposed to reach in Bailey v. Commonwealth, 20 Va. App. 236 (1995). In Bailey the clerk from a store could not recollect in court what items had been stolen from the store. However, he was able to read from the police report the items which had been stolen. He was able to do this because after the break-ins he went through and inventoried the items with the deputy and told him all the items which were missing. He clearly recalled having done this and could testify to its general truthfulness because he had the memory of having done the specific inventory.
I've thought about it, and I think I disagree. I'm nerd enough to still have my Imwinkelreid in the office, and it states:
Suppose that the witness on the stand cannot recall a particular fact or event. The witness' inability to recall supplies necessity for resorting to hearsay evidence. If at the time of the event, the witness had made a record of the fact or event, the record would be a reliable substitute for the witness' present recall. . . .
4. The witness can vouch that when he or she prepared the record, the record was accurate. Ideally, the witness will recall the very occasion on which he or she prepared the document. Alternatively the witness may testify that he or she habitually records that type of information and that their habit is to record the information carefully. A police officer assigned to the traffic detail could give that type of testimony about measurements at accident scenes. Finally, in some jurisdictions, it is acceptable if the witness at least recognizes his or her handwriting on the document. . . .
I think it makes sense, even in reference to the example Ken uses. In that case, the clerk remembered doing the inventory and that he told the officer specific items that were missing. He just couldn't remember what they were in the present - which is why the "refreshed recollection" exception was inapplicable. In this one, the officer claims he remembers having this specific conversation with this defendant by the roadside on that date. He just doesn't remember specifically what was said. I don't think it's that much of a stretch.
What actually bothers me is that the judge came up with the exception sua sponte. I'm talking philosophically here: the judge technically functions as arbiter, the prosecution brings the case. Do we want the sitting judge proactively fixing a fatal flaw in the prosecution's case that the state's attorney is apparently not capable of repairing?
Regarding the Crawford issue that Ken also raised, I don't know that it's a violation. The witness is present and ready for cross-examination. No, he can't recall the specific words that were said. That can be brought out in cross. He may have a fuzzy memory on the details of the conversation. Again, cross him on that. I don't think you can extend the Crawford rule against tape recorded statements of an utterly unavailable witness (spousal privilege) to hold that confrontation requires an available witness to have a present recollection of the words of the conversation.
Addendum:
Ken adds that he's not sure the officer passed the first part of the test in that he didn't appear to have first-hand knowledge of the possession. I think that's a framing issue. You want him to prove he had first-hand knowledge of the defendant's possessing the marijuana - the very thing that the confession was crucial in establishing. If I were on the opposition, I'd maintain that that element was completely satisfied by his having possessed first-hand knowledge of the stop, the presence of the pot in the glove box, and the resulting conversation with the defendant in which the confession was made. No, he currently does not possess first-hand knowledge/recollection of the confession itself, but that's the purpose of the exception.
UPDATE: Yep, I'm a trial geek. I still have Mauet, too.
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