State v. Scott
60 Ohio Op. 2d 1, 285 N.E.2d 344, 31 Ohio St. 2d 1 (1972)
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Rule of Law:
The rule of evidence known as “past recollection recorded” is recognized in Ohio, may be employed in criminal trials, and does not violate a defendant’s Sixth Amendment right of confrontation if the declarant testifies as a witness and is subject to full and effective cross-examination at trial.
Facts:
- Carol Tackett, a friend of the defendant Bandy Scott, had a conversation with him at a theater shortly before his arrest.
- During this conversation, Bandy Scott told Carol Tackett that he had wrecked a car and shot a guy.
- The day after Bandy Scott's arrest, Carol Tackett gave a handwritten, signed statement to the police detailing this conversation.
- At trial, Carol Tackett testified that she could not remember the exact words Bandy Scott used concerning somebody being shot, only that it was "something about that."
- Carol Tackett identified her written statement in court, confirmed it was in her handwriting, and stated that her memory was better when she made the statement and that it was a true statement to the best of her recollection at that time.
Procedural Posture:
- Bandy Scott was tried, and the first trial ended in a deadlocked jury.
- Prior to the second trial, Bandy Scott requested a complete transcript of the first trial, which the trial court refused.
- During the second trial, a signed statement from Carol Tackett was admitted into evidence over Bandy Scott's objection.
- The trial court entered a judgment of conviction against Bandy Scott.
- Bandy Scott appealed the conviction to the Court of Appeals.
- The Court of Appeals affirmed the judgment of conviction.
- The case was appealed to the Supreme Court of Ohio.
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Issue:
Is the rule of evidence known as “past recollection recorded” recognized in Ohio, permissible in criminal trials, and, if so, does its use violate a defendant’s Sixth Amendment right of confrontation when the declarant testifies and is subject to cross-examination?
Opinions:
Majority - Leach, J.
Yes, the rule of “past recollection recorded” is recognized in Ohio, may be employed in a criminal trial, and its admission does not violate a defendant’s Sixth Amendment right of confrontation if the declarant testifies and is subject to full and effective cross-examination. The court formally adopts the rule of “past recollection recorded,” distinguishing it from “present recollection refreshed” by noting that in the former, the witness's present recollection is absent or incomplete, but they can verify the accuracy of a contemporaneously recorded statement. The court outlines four requirements for admissibility: (1) the witness had firsthand knowledge of the event; (2) the written statement was an original memorandum made at or near the time of the event while the witness had a clear and accurate memory; (3) the witness lacks a present recollection of the event; and (4) the witness vouches for the accuracy of the written memorandum. The court found that Carol Tackett’s statement met all these requirements. Addressing the Sixth Amendment right of confrontation, the court relied on California v. Green (1970) and Nelson v. O’Neil (1971), which established that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements so long as the declarant is testifying as a witness and subject to full and effective cross-examination at trial. The court reasoned that the witness's presence allows for an oath, denial, or qualification of the prior statement, and effective cross-examination on honesty and ability to observe, even if memory of the specific details is gone. The court further distinguished this case from prior Ohio cases where the declarant was not available for cross-examination. The court also rejected the appellant's claim that the denial of a full transcript of the prior deadlocked trial was error, citing Britt v. North Carolina (1971) and noting the availability of alternative means to fulfill the transcript's function and the lack of demonstrated specific prejudice. Finally, the court concluded that even if the admission of the statement was erroneous, it would be harmless error given the overwhelming other evidence of guilt.
Dissenting - Corrigan, J.
No, the admission of the written statement as “past recollection recorded” in this criminal case was prejudicially erroneous to the defendant’s substantial rights. Justice Corrigan asserted that adopting this innovative ruling for criminal law in Ohio introduces significant evidential and constitutional problems. The dissent objected to the statement's admission for at least four reasons: (1) the statement was not made in the presence of the defendant; (2) allowing the written paper to go to the jury deliberation room risks giving it undue weight; (3) it places special emphasis on the facts recorded in the statement over other testimony; and (4) crucially, the witness, Carol Tackett, did not state unambiguously that she had no present memory of the events. The dissent noted that Tackett only said she couldn't remember the exact words, not that her memory was entirely absent. Furthermore, the prosecutor made no effort to refresh her recollection from the prior written statement or ask if it revived her memory, which the dissent considered an indispensable preliminary step before admitting it as past recollection recorded.
Analysis:
This case significantly shaped Ohio evidence law by formally recognizing and approving the “past recollection recorded” exception to the hearsay rule, clearly distinguishing it from “present recollection refreshed.” It establishes a definitive four-element test for admissibility, providing a crucial framework for future courts. By integrating federal Confrontation Clause jurisprudence from California v. Green and Nelson v. O’Neil, the court solidified the principle that an out-of-court statement made by a witness who testifies and is subject to cross-examination at trial does not violate a defendant's Sixth Amendment rights. This decision provides critical guidance on how to admit reliable prior statements when a witness's memory has faded, balancing the need for evidence with constitutional protections in criminal proceedings. Future cases will refer to this for foundational requirements for such evidence, impacting trial strategy and evidentiary challenges.
