Put a little English in it

I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue.  The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements.  The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded.  In English the prosecution and the judge erred.  The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.

(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately;

(2) the recorded statement was made or  adopted by the witness when the matter was fresh in the witness’s memory; and,

(3) the recorded statement correctly reflects that knowledge.

The problem was failing the “The burden of proving that notes reflect a witness’s own words rather than the note taker’s characterization falls on the party seeking to introduce the notes.” United States v. Almonte, 956 F.2d 27, 29 (2d Cir. 1992) (per curiam).

“[A] ‘third party’s characterization’ of a witness’s statement does not constitute a prior statement of that witness unless the witness has subscribed to that characterization.” When a witness’s statement is recorded by another, both the witness and the one transcribing the statement must testify as to the accuracy of the report “to establish that the statement is the witness’s past recollection recorded under Rule 803(5).”

Slip op. at 6 (citations omitted).  The prosecution successfully met the first two checks, the problem being the third.

The third prong of the test demands the memorandum or record correctly reflect the witness’s knowledge. While there is no requirement the record itself be true and correct, there must be evidence that a witness intended to provide a true account of the events. See, e.g., Williams, 951 F.2d at 858 (“The person who witnessed the event must testify to the accuracy of his oral report to the person who recorded the statement.”) Here, there is no evidence VL affirmed that she had provided a true account. VL did not sign a statement indicating the statement was accurate, nor did she testify that it was so.

There were other infirmities in the way the prosecution went about presenting the evidence all of which were insufficient.