In a recent case, In the Matter of J.W., a Juvenile, the 10th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.
I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here. I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.
The case involved the written and signed statement of a witness to a law enforcement officer. The witness implicates the defendant in her statement, providing an eye-witness account of the crime. As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.
However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all. She could, however, identify her signature at the conclusion of the statement.
At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded. TRE 803(5) provides:
A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness 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, unless the circumstances of preparation cast doubt on the document’s trustworthiness. 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 trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted. On appeal, the 10th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
- the witness must have firsthand knowledge of the event,
- the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
- the witness must lack a present recollection of the event, and
- the witness must vouch for the accuracy of the written memorandum.
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996). From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4th prong is the substance of the question presented to the appellate court. In order to satisfy the 4th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it. While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is:
WHAT ABOUT THE 6TH AMENDMENT? Does this juvenile defendant not have the right to confront the witness against her? This eye-witness statement implicating the defendant is surely “testimonial” under Crawford. And as a testimonial statement, the defendant has a right to cross-examine the declarant. This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement. More importantly, her statement could not be subjected to the “crucible of cross-examination.”
To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant. Normally that is something that will come to light during cross-examination (if not sooner). However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.
In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis. Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements. I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion.
I sincerely hope that the Supreme Court of Texas takes a look at this case. Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6th amendment argument was made during trial. I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.