Baker v. State
371 A.2d 699 (1977) 35 Md. App. 593 (1977)
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Rule of Law:
To refresh a witness's present recollection, any item may be used as a stimulus, regardless of its authorship, accuracy, or contemporaneous creation, because the item itself does not become evidence; the only evidence is the witness's subsequent live testimony from their revived memory.
Facts:
- Gaither Martin picked up three women at the New Deal Bar.
- Martin was subsequently pulled from his car, beaten, and robbed of his money, wallet, and keys.
- At the crime scene, Martin described the attack and robbery to Officer Bolton.
- Later, Officer Bolton took Martin to a location where another officer, Officer Hucke, was holding a suspect, Teretha McNeil Baker.
- A confrontation occurred between Martin and Baker in the presence of both Officer Bolton and Officer Hucke.
- Officer Hucke prepared a police report detailing the events of this confrontation.
Procedural Posture:
- The State prosecuted Teretha McNeil Baker in a Baltimore City trial court.
- During the trial, the judge refused to allow defense counsel to use a police report written by Officer Hucke to refresh the memory of the testifying Officer Bolton.
- A jury convicted Baker of first-degree murder and robbery.
- Baker, as the appellant, appealed the conviction to the Court of Special Appeals of Maryland, arguing the trial judge erred in the evidentiary ruling.
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Issue:
Is it a reversible error for a trial court to prohibit a witness from using a document they did not author to refresh their present recollection on the grounds that the document would be inadmissible as a record of past recollection?
Opinions:
Majority - Moylan, J.
Yes. It is an error for a trial court to prohibit a witness from using a document to refresh their present recollection simply because the witness did not author it. The court distinguished between two legal concepts: Present Recollection Revived and Past Recollection Recorded. The trial court erroneously applied the strict admissibility standards of Past Recollection Recorded, where a document itself becomes substantive evidence and must be shown to be reliable (e.g., authored or adopted by the witness when the memory was fresh). In contrast, Present Recollection Revived allows any item—regardless of its source, accuracy, or admissibility—to be used as a mere stimulus to jog a witness's memory. The item itself is not evidence; the evidence is the resulting testimony of the witness, who speaks from their now-revived memory. Therefore, the defense was entitled to attempt to refresh Officer Bolton's memory using Officer Hucke's report, and the trial court's refusal to permit this was a prejudicial error.
Analysis:
This case provides a seminal and clear judicial distinction between the evidentiary doctrines of Present Recollection Revived and Past Recollection Recorded. By clarifying that any stimulus can be used to refresh a witness's memory, the decision empowers trial attorneys to use a wide array of materials without having to meet the rigorous foundational requirements of hearsay exceptions. This prevents the erroneous exclusion of potentially critical testimony due to a common confusion between these two distinct concepts. The case serves as a foundational teaching tool on the proper application of these rules of evidence, emphasizing that the focus in recollection revival is on the resulting testimony, not the nature of the memory-jogging tool.
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