By Elizabeth Kruska
When I was in fourth grade my teacher made everyone in the class write in journals for fifteen minutes every day after lunch. I suspect it was so she could build a little peace and quiet into the day as much as it was so we could practice writing. I recently found my journal, and want to share this entry:
Today after science David told me he likes shrimp. So I told him I like shrimp. Then he said, “sit by ya at lunch” so I said “ok.” Then Jessica got mad because I told her yesterday I would sit by her. Jessica sat by Sherry and now they are both mad at me because Sherry doesn’t like David.What a gem.
This happened in 1987 or 1988, and I really don’t have much of a memory about the interaction, or any of the interpersonal strife between Sherry and David. I remember that David, Jessica, and Sherry were all in my class, but that’s about it.
I recognize my fourth-grade penmanship in my pretty peacock-blue notebook, so I know I wrote it. I believe this event probably happened, because it was noteworthy enough in my day to write in my after-lunch journal. I probably wouldn’t have written something in my journal that wasn’t true, because the journal was just for me and nobody else read it. Twenty-seven years after, I totally believe there was some sort of social upheaval at lunch that day.
This brings us to State v. Spaulding, and the rule about past recollection recorded.
Sometimes people have to testify in court, and they don’t necessarily remember all the facts about which they are supposed to testify. This can be fixed in two ways. First, someone can have their recollection refreshed. He or she is shown a document or something, it jogs the declarant’s memory, and then the declarant can testify about what he or she now remembers.
But sometimes the declarant really can’t remember at all, but knows he or she wrote a statement at a time the facts were known. If that person can say the facts were true and accurate at the time the statement was made, the statement can be admitted for its truth. The document itself isn’t received into evidence, but the facts contained in the statement are read into the record.
Since it’s a substitute for live testimony, the declarant has to be able to say that the facts in the statement were true at the time he or she wrote them. If I had to testify about the great fourth grade lunchtime debacle, I think it’s fair to say the entry in my journal could substitute for my live testimony.
Allen Spaulding was charged with domestic assault and unlawful trespass. He and his girlfriend, the complainant (Complainant), had previously lived together, although not long before the incident here Allen left and Complainant got a no-trespass order issued against him.
On the day of the incident, Allen and Complainant spent the day at a lake. Complainant consumed a lot of alcohol—so much that she later described herself as “trashed.” Allen and Complainant ended up going back to Complainant’s house, where she later made a 911 call, saying that Allen “had me around the neck,” and that he had beaten her up so much she believed her jaw was broken. Police arrived and found that Complainant had a split lip and some red marks on her neck. Allen had left by the time they arrived. The police tracked him to and arrest him. The officer then came back to Complainant’s home and helped her fill out a written statement form.
It’s not clear who actually wrote the statement. By the time trial rolled around, Complainant said she was so drunk that night that she doesn’t remember what happened. She didn’t remember writing the statement. She recognized her signature, but thought the rest of the handwriting wasn’t hers. She said she wouldn’t sign a statement if it wasn’t true, but she really didn’t have a memory of the events or of making the statement.
The court admitted the contents of the statement as a Past Recollection Recorded (PRR) under V.R.E. 803(5). Ultimately, Allen was convicted of the domestic assault charges against him. He appealed on the grounds that the prosecutor made some inappropriate remarks in closing argument, and also that the statement should not have been admitted. Allen also appealed the fact his motion for judgment of acquittal was denied.
First—SCOV finds there was enough to support the denial of the motion for judgment of acquittal. The standard is fairly low, and the State tendered the 911 call and the officer’s observations of Complainant. The court said that was enough for the case to get to the jury. If I were the judge, I’d probably have said the same.
SCOV finds that the contents of Complainant’s statement should not have been admitted under 803(5), so they don’t reach the matter having to do with the closing argument.
There are three foundational elements for a statement to be admitted under 803(5). First, the declarant must have once had knowledge of the event. Second, at the time the declarant is testifying, he or she doesn’t have sufficient memory to testify fully and accurately. Finally, the declarant has to have made the prior statement or adopted the prior statement (if made by someone else) at a time when the facts were fresh in the declarant’s memory.
My fourth-grade journal is an excellent example of this. The statement in Allen Spaulding’s case is not. It’s not because although Complainant said she wouldn’t sign something that wasn’t true, she couldn’t adopt that she knew the facts at the time of making the statement. If the declarant doesn’t remember whether the facts at the time of making the statement were true or not, the statement can’t be admitted. SCOV demands a “specific avowal of the reliability of the recorded recollection from the declarant herself” in order for it to be admissible. Yow!
It used to be the court allowed a “totality of the circumstances” analysis to determine the admissibility of a PRR. The problem with using multiple factors is that they aren’t really a substitute for the declarant’s “specific avowal” that the statement was true when she wrote it. The court has to be really assured that the hearsay substitute for live testimony really is true. A declarant saying he or she doesn’t lie so the old statement must be true isn’t good enough. Furthermore, under the “totality” test, there’s always the possibility a court could look for reasons to admit a PRR, and make those reasons fit the test. SCOV is concerned about this possible confirmation bias.
The statement here wasn’t sufficient to be admitted, and because of its nature, the fact that it was admitted wasn’t harmless. SCOV reverses and remands to the trial court.
Judge Tomasi got specially assigned to this case, and wrote a lovely concurrence. Concurrences are nice; sometimes, as here, you get a history lesson on a particular point of law.
V.R.E. 803(5) wasn’t created with an eye toward courts admitting PRRs based on the totality of the circumstances surrounding the statement. Although the federal rule doesn’t specify a method for determining the accuracy of the PRR, various federal courts developed this test to allow a trial court to look at all the pieces surrounding the PRR before deciding whether it is accurate enough to be admitted.
The Vermont rule closely tracks the federal rule. The Reporter’s Notes to the Vermont rule point out that it is meant to be “consistent with Vermont common law,” and the notes also cite to 4 Vermont cases. Judge Tomasi took a look at those cases, and concluded that Vermont’s history with this particular rule is to require some kind of in-court affirmation by the declarant that the statement was true at the time it was written.
Although Judge Tomasi agrees with the majority, he writes that a witness’s testimony about her overall truthfulness, and to use that to say she believes the PRR is true and accurate could be sufficient for the PRR to be admitted. Where a statement was verified under oath (like in an affidavit), that should be sufficient to get to its truthfulness because at the time of making the declarant swore to its truth. He points out there could very well be times when someone doesn’t remember both the facts and the making of the statement. If the person can’t remember, but it can be shown that the statement was sworn-to at the time of making, that should help in showing that it was truthfully made.
If a statement is made contemporaneously with an event, chances are good it accurately captures the details known about the event at the time. My fourth grade lunch is a good example. Under Judge Tomasi’s view, if I were to testify about the lunch, saying I wrote the statement at the time and if I testified that I am generally truthful and was at the time, that could be sufficient to get it admitted. Of course, I didn’t have my journal notarized, but if I did, that surely would help in its admission.
Then Judge Tomasi turns to the harmless-error analysis. Complainant testified that she would not lie to the police. On the other hand, she also said she consumed a gallon of whiskey and two thirty packs of Budweiser that day. That is a lot of alcohol. Actually, that’s a lot of liquid, period. By my math, that’s over 6 gallons of liquid. In any case, even though she swore to the statement and testified she wouldn’t lie to the police, the fact that she described herself as “a train wreck” at the time, doesn’t really lend a lot of credibility to the truth of the contents of the statement. She might have thought she was being truthful with the police, but her ability was likely too impaired to know if she was telling the truth or not. Because of this, Judge Tomasi agrees the statement should not have been admitted, and agrees the case should be remanded.