An Incomplete Memory Permits Introduction of Recorded Recollection Under Rule 8.03(5)

State v. Stone, Minn.Ct.App., 7/7/2009.  Mr. Stone, unmasked, and his masked companion crashed a house that they believed had lots of cash in it; there was some cash but a lot more people, one of whom Mr. Stone shot.  Two of the occupants told the police that Mr. Stone was one of the assailants; another of the occupants, G.J.,  identified Mr. Stone from a photo array.  At trial, which occurred nine months later, G.J. had difficulty recalling that he had made an identification, whether he’d got a good look at the unmasked man, and what description of the intruder he had given to the police.  He did agree that his witness statement was an accurate reproduction of the questions and answers from the police interview that occurred shortly after the break in.  His typical response at trial to the question whether he believed that he had sufficient recollection to testify fully and accurately about what happened was “That’s all I remember right now.”  Over objection, the trial court allowed the state to play the entire recording of G.J.’s police interview.

The trial court admitted the recording as a recorded recollection under Rule 8.03(5):

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness‟ 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.

The appellate court gives the rule an expansive reading.  A witness’s incomplete memory is enough.  The rule is satisfied, and the previous statement or recording comes into evidence, when the witness’s recollection at trial is impaired to an extent that he is unable to testify fully.  A recorded recollection may then “supplement” (replace?)  that incomplete memory.

Mr. Stone also complained that G.J. had neither made nor adopted the recording, a requirement of the rule.  The appellate court concludes that a recording in the witness’s own voice, made at a time when the events described would be fresh, satisfies the rule.