20 July 2005

Contemporaneous Record & Crawford

I was watching a possession of marijuana charge today. 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.

I must admit that I sat there a little shocked; I'd never seen this exception used in this manner. After I finished my case I went down to the law library to look up this exception. The test for this exception is:
(1) The witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of [the event], (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.
Let's examine that for a minute. 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.

Now, compare that to the evidence allowed in above. The officer could not testify to the general truthfulness because he did not remember asking the specific question or receiving the specific answer. Basically what I'm saying is that the defense wasn't attacking him because he couldn't remember whether the defendant confessed to having "a bag of weed" or "the bag of weed" in the car. In such a case, the general recollection of having asked the question and gotten the answer would allow a fallback onto this hearsay exception for the exact wording from the report. The defense was raising the hearsay exception because the officer didn't even have a general memory of a question or statement.

And then there's Crawford. This is about as crystal clear a violation of Crawford as I can think of. To be fair, this issue was not raised before the judge. However, as applied today in court, this is a heck of a dodge to get around the right to confront.

Applied properly, as per Bailey, this exception doesn't greatly infringe upon the right to confront. I can cross examine the clerk in that case as to why he inventoried certain items, whether the deputy was suggestive, how he knew items were missing, &cetera.

Applied as I saw it in court today there is no way to actually cross examine. The officer doesn't remember a question or answer. I can't ask him anything pertinent. At best, I can ask generalities such as how the officer usually writes his reports. That's not a confrontation on the pertinent issue.

Now that I've lit into the trial judge's decision, let me say that I am impressed that the judge actually stated the reason for his decision. I disagree with it and I'm a little perturbed that the judge raised it and not the prosecutor (who was a very competent prosecutor - not someone who needs help from the judge). Still, any judge who states the reasons for his rulings is someone who should be complimented for it.

[addendum] Looking back over the 4 part test, I'm not sure the officer passes the first part of the test either. He wouldn't seem to have first hand knowledge of the possession.


Anonymous said...

Without commenting on your hearsay argument, I don't think there is a Crawford violation. The officer showed up, took the stand, looked the defendant in the face, and said word to the effect of "You are guilty." I might argue that the State prevented the attorney from providing effective assistance (by preventing effective cross-examination), but showing up ought to per se be confrontation. There is not standard set or implied for 'effective' confrontation in Crawford.

Ken Lammers said...

The officer showed up and read a statement which he didn't remember. It's the same as choosing someone from the gallery and having them read the statement. There's no way to confront anyone about whether that statement is a correct representation of the facts.

Mister DA said...

Your analysis would essentially invalidate the exception. How could an honest witness ever authenticate the recorded information other than by reference to previous conduct.

I'm not 100% sure, but isn't the declarant in this situation the defendant? Who's going to be confronted and cross-examined under Crawford, and by whom?

Ken Lammers said...

Mr. DA,

An honest witness could be able to do it in a case such as the Bailey case mentioned above. This should be a very rare exception which applies when the general activity is remembered (taking inventory) but it is unrealistic to expect an exact memory (how many of each of 300 items were missing 6 months ago). I agree that the 4th test makes this a difficult exception to apply.

I don't think it's about who the initial declarant was. It's about whom the declarant is in the court room. If the officer remembers he declares that he heard statement X. This is an allowed hearsay exception (statement against interest, refreshed memory). The officer can be crossed about the question, the answer, the circumstances, &cetera.

If the officer remembers generally what happened but not specifics the report becomes a verified declarant.
In fact both the officer and the report are declarants. The officer verifies the specific declaration of the report by testifying as to the general activity specifically tied to the report's specific declaration. For instance, if he remembers that he asked about the marijuana and the defendant said it was his the report would be allowed to show what the specific question was and what the exact answer was. This is a compromise which recognizes that specific memories of minutiae are difficult to retain. While not as thoroughly as above, the officer can still be crossed about the question, the answer, the circumstances, &cetera. It is somewhat problematic, but I think it is a valid nod to reality.

However, if the officer does not remember anything the report becomes the sole declarant. A declarant which sits silent to any cross.

Anonymous said...

The Sixth Amendment gives a right to confront witnesses against you. The report is not a witness, but was written by one. The writer appear face to face with the defendant. Therefore, no Crawford violation. (Because the report is clearly testimonial, the question of the continued viability of Roberts' reliability requirements is irrelevant)

Now, due process should act to guarantee acurate and impartial evidentiary rulings. It may even require the existence ofsome rules of evidence in criminal proceedings. (More prejudicial than probabtive? Speculation? I'm not sure hearsay is included). But that doesn't add up to a Confrontation problem.

Country Lawyer said...

The officer's affidavit itself was never entered into evidence, correct? Therefore, the officer was simply using the affidavit to refresh his recollection. Once refreshed, the officer then testified about the events of the arrest in more detail. Sounds proper.

It sounds like the officer made the prosecutor's case harder by not reviewing his own affidavit prior to taking the stand. But that fact alone wouldn't be a basis to strike the officer's testimony since the officer had first-hand knowledge of the events, i.e., he made the arrest, but simply couldn't recall all the details without reviewing his report.

Ken Lammers said...

Even after reviewing the report the officer said he could not remember. This was not refreshing of memory.

The confession which secured the conviction is not a minor detail. It is a very important event in the arrest phase and the most important event in the prosecution phase.

Mister DA said...

All I've got to say is that's one honest cop.

Ken Lammers said...

Yes, it was amazing to hear him admit it. I think what tripped him up was that he didn't write down what the defendant said, just a general "Defendant admitted it" type of statement.

By the time the hearing was over it felt a lot like the officer had heard the guy say "Give me a break" and took that as an admission. The officer remembered that well. But he wrote in his report that there was an admission and therefore there was because he wrote it in his notes.