Confusing Recorded Recollection and Present Recollection Refreshed

I wrote a post (here) about the recorded recollection exception to the hearsay rule, in which I noted that this exception often is confused with the technique of present recollection refreshed under Evidence Rule 612. We see a little of that in the recent court of appeals decision, State v. Brown. Let’s take a look.

When a witness testifies that he or she can’t remember the matter in question, the proponent may have the witness review a document or item to refresh the witness’s memory. If reviewing the material sufficiently refreshes the witness’s recollection, the witness then testifies to the matter in question and no hearsay issues are presented. That is present recollection refreshed. When, however, the witness’s memory can’t be refreshed, the proponent may seek to introduce the contents of a memorandum or record created by the witness as a recorded recollection, and in lieu of the witness’ trial testimony. See, e.g., State v. Spinks, 136 N.C. App.153, 158 (1999) (State turned to this exception when unable to refresh the witness’s recollection). To be admissible as a recorded recollection, the contents of the memorandum or record must satisfy the Rule 803(5) hearsay exception. See generally State v. Harrison, 218 N.C. App. 546 (2012). To be admissible under that exception, the proponent must establish that the witness once had knowledge about the matters recorded but now has insufficient recollection to allow for full and accurate testimony about those matters and that the record was made or adopted by the witness when the matters were fresh in the witness’s memory and correctly reflected the witness’s knowledge. State v. Brown, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 20, 2018); see generally Jessica Smith, Criminal Evidence: Hearsay (Oct. 2013), in North Carolina Superior Court Judges’ Benchbook (fleshing out these requirements).

In Brown, the defendant was charged with murdering two people. After the defendant told his brothers Reginald and Antonio that he murdered the victims, they contacted the police and, the next day, gave written statements to an investigator recounting what the defendant said. When the State called Reginald at trial, he testified to the defendant’s central statement—“that he did it”—but offered limited details about the conversation. Antonio’s testimony was wobblier; he testified that his statement was written “about three years ago” and he “really can’t think of it back then.” The State then admitted, over the defendant’s objection, both brothers’ written statements. The defendant was found guilty and appealed, arguing in part that the statements shouldn’t have been admitted as a recorded recollection under Rule 803(5). First, he argued, the State failed to establish that the statements accurately reflected the brothers’ prior knowledge of the matters recorded. The court rejected this argument, noting that each brother testified that he recalled giving a written statement; that he recognized the document as being that statement, including recognizing the handwriting and signature; and that the statement did not appear to have been altered. Also, after Reginald read the statement, he confirmed that it was his statement and that he wrote down all the information he had at the time, including what defendant had said to him. Similarly, Antonio confirmed that he wrote down what the defendant had told him.

The defendant also argued that the State failed to establish that the brothers had insufficient recollections about the matters recorded because neither testified to not remembering what the defendant had said to them. The court rejected this argument, concluding that according to its text, Rule 803(5) requires only that a witness’s recollection be insufficient “to enable him to testify fully and accurately” about the matters recorded. The court continued: “In determining if a witness’s recollection is sufficiently exhausted . . . , the relevant inquiry is ‘whether the witness is using the memorandum as a testimonial crutch for something beyond his recall.’ State v. York, 347 N.C. 79, 89, 489 S.E.2d 380, 386 (1997) (emphasis added).” And it concluded: “The [brothers’ testimony] . . . show[s] that this evidence was necessary as a testimonial crutch for something beyond [their] recall.” Specifically, it noted that Reginald couldn’t remember numerous details surrounding the incident, including what time the defendant came to his home, who initially called the police, what police department was called, and when he spoke to the investigator. As to Antonio, he explicitly testified to a lack of memory.

So what’s the problem? York was a refreshed recollection case. In York, the trial court allowed a law enforcement officer to use notes during his testimony. At issue there was whether the trial court properly allowed the officer to use his notes “in order to refresh his present recollection.” State v. York, 347 N.C. 79, 88 (1997) (emphasis added). What had to be examined under that rule, the York court stated, “is whether the witness has an independent recollection of the event and is merely using the memorandum to refresh details or whether the witness is using the memorandum as a testimonial crutch for something beyond his recall.” Id. The court went on to find that the officer’s use of his notes during his testimony was proper under the refreshed recollection rule. Id. at 89.

Let’s cut to the chase: Did citing York and reciting the refreshed recollection standard affect the outcome in Brown? Probably not. The court was right that recorded recollection requires that the witness can’t recall. And here, Antonio testified that he didn’t remember his statement and Reginald was hazy on some of the details. But because it might matter in another case, it’s best to keep the issues in their proper boxes: Refreshed recollection lets a witness use an item to jog his or her memory and then testify to that refreshed memory; the hearsay exception comes into play when the witness’s memory can’t be refreshed and a party seeks to introduce the witness’s prior recorded recollection as substantive evidence.