State v. Spaulding
103 A.3d 487, 2014 VT 91, 197 Vt. 378 (2014)
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Rule of Law:
For a prior written statement to be admissible as a past recollection recorded under Vermont Rule of Evidence 803(5), the declarant must provide a specific avowal of its reliability at trial, confirming that the statement accurately reflected their knowledge when made; general claims of truthfulness or circumstantial evidence are insufficient.
Facts:
- Allen Spaulding and the complainant were in a live-in romantic relationship for about 18 months, but the complainant had recently ordered Spaulding out of her home and obtained a no-trespass order against him.
- On July 30, 2012, Spaulding and the complainant spent the day at a lake, during which the complainant drank heavily and became "trashed."
- At 11:45 p.m. that evening, the complainant called 911, reporting a domestic incident where she had woken up on the floor, believed her jaw was broken, and stated that Spaulding had been in her house and "had me around the neck," causing her to bleed and lose consciousness.
- The first police officer arrived to find the complainant bleeding from a cut lip, and while there, the officer learned Spaulding was nearby and left to arrest him.
- Upon the officer's return, he and the complainant finished drafting a written statement, which detailed Spaulding grabbing her throat, dragging her, punching her, threatening to kill her, and taking her money and cigarettes, and which the complainant signed under oath.
- At trial, the complainant testified she had no recollection of writing the statement and did not believe it looked like her handwriting, recalling nothing of the evening except being taken to the hospital due to extreme intoxication, though she did identify her signature and stated she would not sign something untrue or lie to an officer.
Procedural Posture:
- Allen Spaulding was charged with aggravated domestic assault, domestic assault, and unlawful trespass.
- The Windham Criminal Division (trial court) conducted a one-day jury trial on January 15, 2013.
- Over Spaulding's objection, the trial court admitted the complainant’s written statement into evidence as "past recollection recorded" under Vermont Rule of Evidence 803(5).
- At the close of the State’s case, Spaulding moved for judgment of acquittal on all three counts, which the court denied.
- The jury convicted Spaulding on the domestic assault charges and found him not guilty on the trespass charge.
- Spaulding appealed his conviction to the Supreme Court of Vermont.
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Issue:
Does Vermont Rule of Evidence 803(5) permit the admission of a declarant's prior written statement as past recollection recorded if the declarant cannot recall the events or the act of writing the statement, and only generally testifies to her honesty, rather than specifically vouching for the statement's accuracy at the time it was made?
Opinions:
Majority - Crawford, J.
No, Vermont Rule of Evidence 803(5) does not permit the admission of a declarant's prior written statement as a past recollection recorded based solely on general claims of truthfulness or circumstantial evidence, but rather requires a specific avowal of the statement's reliability from the declarant herself at trial. The Court reversed the conviction, rejecting the "totality-of-the-circumstances" approach taken by a plurality in State v. Marcy and returning to the more stringent rule established in State v. Lander. The majority found that general testimony from the complainant that she would not lie to police or sign an untrue statement, alongside the statement being sworn and consistent with her injuries, was insufficient to establish the required reliability. Such general claims of honesty are often discounted, and relying on circumstantial consistency risks confirmation bias, where evidence is selectively considered to support a preconceived notion. The Court emphasized that Rule 803(5) is an exception to the hearsay rule, and without the declarant's specific in-court testimony vouching for the accuracy of the particular statement, it lacks the necessary safeguards comparable to other hearsay exceptions that provide opportunities for meaningful cross-examination. The error in admitting the statement was not harmless, as it was central to the State's case and the other evidence against the defendant was not strong.
Concurring - Tomasi, Supr. J.
Yes, I concur with the majority's decision to reverse and remand for a new trial because the trial court used an incorrect standard, specifically agreeing to reject the "totality-of-the-circumstances" test from State v. Marcy. While agreeing that testimony of "general honesty" is insufficient on its own, I depart from the majority on the specific type of in-court confirmation required. Historically, Vermont law and common law commentators suggest that if a witness can swear at trial, based on their habit, trait, practice, or firm conviction, that they would have been truthful in making the statement under the circumstances, that should be sufficient for admission under Rule 803(5). This allows the witness to adopt the recorded recollection, which then substitutes for their memory, and the factfinder can evaluate the witness's credibility. However, in this particular case, even under this more flexible interpretation, the complainant's severe intoxication on the night the statement was made cast serious doubt on its accuracy, preventing a confident determination that it would have been admissible. Therefore, the error in applying the improper standard was not harmless.
Analysis:
This decision significantly clarifies and stiffens the foundational requirements for admitting prior written statements as past recollections recorded under V.R.E. 803(5) in Vermont, rejecting a more flexible, circumstantial approach. It restores the principle that the declarant must directly affirm the accuracy of the statement at trial, rather than relying on general assertions of truthfulness or consistency with other evidence. This ruling may make it more challenging for prosecutors in cases, particularly domestic violence cases, where victims are reluctant to cooperate or suffer from memory loss, as it limits the use of their prior statements unless they can specifically vouch for their accuracy in court. The Court’s emphasis on the dangers of confirmation bias and the need for meaningful cross-examination highlights a broader concern for evidentiary safeguards against unreliable hearsay.
