An Incomplete Memory Permits Introduction of recorded Recollection under Rule 8.03(5)

State v. Stone, Minn.S.Ct., 6/30/2010.  A jury convicted Mr. Stone of aiding and abetting first degree aggravated robbery.  The Court of Appeals upheld that conviction, which I wrote about here.  A witness, G.J., had difficulty remembering all of the events of the robbery and everything he had previously said to the police about it.  So, the trial court had permitted the introduction of his audio recorded statement to police, based on G.J.’s admitted alcoholism, the state’s failure to refresh his recollection, and G.J.’s testimony that he had an insufficient recollection of the events.

The state argued that the recording was admissible under Minn.R.Evid. 803(5), recorded recollection.  Here’s what that rule says:

[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.

Right out of the box Mr. Stone’s argument is in some difficulty.  That’s because he did not argue at trial that the audio-recording was a “memorandum or record”.  So, right away, Mr. Stone is down to two sub-arguments:  whether G. J. had sufficient recollection to testify fully and accurately, and whether he either made or adopted the statement when to subject of the statement was fresh in his memory.

Insufficient memory:  G.J. had some recollection, which is good enough to satisfy the rule, at least, which would seem always to be the case, when the missing parts of recollection are of “critical” details, like who it was who committed the crime.

Made or adopted:  This is easy when the witness hand-writes and signs a written statement; it’s been made or adopted.  A witness who testifies that a transcribed statement contains his signature and that he believes that he would not have signed it unless the contents were true has made or adopted the statement.  Walker v. Larson, 284 Minn. 99, 104, 169 N.W.2d 737, 741 (1969).  An audio recording gets a bit trickier, but where, as here, no one disputed that the voice on the recording was that of G.J., then he “made” the audio recording.