Suppose you had to prove (in litigation) where you were on a specific date. And suppose you had zero independent memory of where you were. There are a number of things you could do to jog your memory. You could look at your phone to see if there are any pictures from that date. You could look at old text messages, emails, or calendar entries to see if they provide some reminder of where you were on the date in question. Now let's suppose you found a cryptic text exchange with a friend that said "C U @ Staples @ 7." Without some context or explanation, the text is meaningless. But for you, the text is like a magic key unlocking a flood of forgotten memories. "Staples" refers to the Staples Center in Los Angeles, and you were there to watch the Lakers take on the Boston Celtics. Seeing that text refreshed your memory.
But what if looking at various writings did not refresh your memory? What if examining various calendar or journal entries (that you knew were accurate at the time) still left your recollection entirely blank? Can the document itself be introduced into evidence? In 2018, we saw an example of this (albeit in a non-litigation context) when lawyers for then-Supreme Court nominee Brett Kavanaugh submitted several pages from his 1982 calendar to the Senate Judiciary Committee to contest allegations of sexual assault.
But how would such evidence play out in a courtroom? California Evidence Code section 1237 provides that "[e]vidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if  the statement would have been admissible if made by him while testifying,  the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and  the statement is contained in a writing which:
(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;
(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate record of the statement.
(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.
Different From "Present Recollection Refreshed"
In practice, lawyers (and witnesses) often conflate the concepts of a witness' refreshed recollection with a witness' past recollection recorded. The line of questioning can look something like this:
Q: Do you recall whether you attended a meeting with Ms. Jones on July 1st, 2018?
A: No, I don't recall.
Q: Do you recognize Exhibit 1?
A: Yes, this looks like an email I sent to Ms. Jones on July 1st, 2018.
Q: Does this refresh your recollection as to whether you attended a meeting with Ms. Jones on that date?
A: Yes, I see that I wrote, "Nice chatting with you at today's meeting."
Q: Your Honor, I request that Exhibit 1 be admitted into evidence.
THE COURT: Any objection?
ATTORNEY: No objection.
If the document simply refreshed the witness' memory, the content of the writing should not have been read aloud. Instead, the witness should have simply affirmed that his or her memory was refreshed. The attorney should have then asked, "Did you attend a meeting with Ms. Jones on July 1st, 2018?" The document should only have been read if the witness' memory was not refreshed and the remaining requirements of Section 1237 were established. And either way, the direct examining attorney should not have been permitted to admit Exhibit 1. If the adverse party wished to have the document admitted (if it was used to refresh the witness' memory), Section 771, subdivision (b), provides that the cross-examining attorney may, "... inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness." Similarly, if the email was read in accordance with Section 1237, subdivision (b) provides that "[t]he writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party."
How Fresh Must the Memory Be?
In People v. Cowan, 50 Cal. 4th 401 (2010), California's Supreme Court considered whether a certain lapse of time between the events recorded and the time of the recording might render a past recollection recorded inadmissible. Cowan involved the grizzly murder of an elderly couple in 1984. The defendant Robert Cowan was not arrested until 1994, after a fingerprint examiner reexamined fingerprints lifted from the murder scene that matched Cowan's. Id. at 415. The victims were murdered in their Bakersfield home, and various possessions were stolen during the commission of the crime: a Colt .25-caliber automatic pistol, a metal cigarette lighter with a specific design, a tooled leather wallet, jewelry, a jewelry box, and a music box. Id. at 416.
About a month after the murders, police received information about alleged drug activity taking place at a local motel. Two rooms were raided and various arrests were made. Id. at 418. The police found a loaded Colt .25 in one of the room's trash cans. And in the van of Danny Phinney, one of the arresstee's, the police seized jewelry and a large quantity of methamphetamine.
Mr. Phinney had problems. He was a drug addict who suffered from bipolar disorder. Mr. Phinney had several misdemeanor drug-related convictions, and was in protective custody following his arrest. Id. at 418. Prior to his arrest, Mr. Phinney had been using "street speed" (i.e., methamphetamine) along with "LSD, mescaline, peyote, amphetamines, and barbiturates." Id. While in jail, however, Mr. Phinney read a newspaper article that sought information about the elderly couple who had been murdered.
Mr. Phinney contacted the police and gave a statement to Detective John Diederich of the Kern County Sheriff's Department. The statement was tape-recorded and transcribed, and he made various statements implicating the guilt of Mr. Cowan. Id. at 419. Mr. Phinney explained that Mr. Cowan showed him a bag full of possessions that matched what had been stolen from the couple's home, including two government checks in the names of the victims. Id. With respect to the Colt .25 that was seized during the raid, Mr. Phinney said that Mr. Cowan sold the gun to a mutual acquaintance but admonished, "Whatever happens, don't get caught with it ... eat it; throw it away or whatever, but don't get caught with it." Id.
At Mr. Cowan's trial more than ten years following the homicides, Mr. Phinney was called as a witness by the prosecution. Mr. Phinney testified that he met with Mr. Cowan and saw various items—jewelry boxes, a tooled leather wallet, government checks made out to the victims, etc.—but he acknowledged that he would not have remembered any these facts had he not reviewed the transcription of his interview with Detective Diederich. Id. at 464.
Detective Diederich testified, over Mr. Cowan's hearsay objection, that he interviewed Mr. Phinney while he was in custody. Mr. Diederich testified that the interviewed was transcribed and recorded. Mr. Diederich filled in some of the details from Mr. Phinney's testimony, including the specific date of the interview, the precise items that Mr. Phinney claimed to have seen, and the location where Mr. Cowan allegedly showed Mr. Phinney these items. Id. at 464 - 465.
After Mr. Cowan's conviction, his appeal included the argument that Mr. Phinney's statement to Mr. Diederich was inadmissible hearsay without any exception. Id. at 465. The Court of Appeal disagreed, and held that the statement was admissible as a past recollection recorded pursuant to Section 1237.
Looking first at the requirement that "the witness has insufficient present recollection to enable him to testify fully and accurately[,]" the Court noted that Mr. Phinney testified that he had "no idea" of when his meeting with Mr. Cowan occurred. Mr. Phinney further testified that he "would not have remembered any" of what he had seen during his meeting with Mr. Cowan without first reading the transcription of his interview. Thus, the Court reasoned, Mr. Phinney satisfied the first requirement of having an insufficient memory to testify "fully and accurately." Id.
Mr. Cowan's attorneys argued that the statement was nonetheless inadmissible because it was not made at a time when the facts were fresh in his mind. See Cal. Evid. Code § 1237(a)(1) (The statement "[w]as made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory[.]"). Mr. Phinney's meeting with Detective Diederich took place more than three months after Mr. Phinney's meeting with Mr. Cowan. The Court likewise rejected this argument, noting that Mr. Cowan's attorneys "point[ed] to no authority for the proposition that such a lapse of time between the events recorded and the time of the recording renders a past statement inadmissible under ... [S]ection 1237, and we are aware of none." Cowan, 50 Cal. 4th at 466. Instead, the law merely requires that "courts should have the flexibility to consider all pertinent circumstances in determining whether the matter was fresh in the witness's memory when the statement was made." Id., citing United States v. Patterson, 678 F. 2d 774, 779 (9th Cir. 1982).
Finally, Mr. Cowan argued that the trial court abused its discretion because Mr. Phinney "could not reliably vouch for its truthfulness, as ... [S]ection 1237, subdivision (a)(3) requires." The Court again disagreed because Mr. Phinney "repeatedly testified that he told [Mr.] Diederich the truth as to the best of his ability." Id. at 466. And while Mr. Phinney acknowledged that his memory in 1984 was "jumbled" and "scrambled" because of his drug use, his interview with Mr. Diederich occurred while he was in custody. According to Mr. Dietrich, he "did not appear delusional or to be on drugs or going through withdrawal." Id. at 466 - 467. The Court explained that the trial court properly permitted a thorough cross-examination of Mr. Phinney: "The jury no doubt considered all of these factors in deciding the weight to be accorded to [Mr.] Phinney's 1984 statement. Under the circumstances, we cannot say that the trial court abused its discretion in determining the statement was sufficiently reliable to be admitted under [S]ection 1237." Id. at 467.
Past Recollection Recorded of Two Memories?
In People v. Davis, 265 Cal. App. 2d 341 (1968), the Court looked at the issue of past recollection recorded when the writing is the embodiment of the memory of two people. The case was simple enough; the defendant Willie Davis was convicted of robbing various liquor stores. Mr. Wax operated the liquor store, and he testified that Mr. Davis demanded cigarettes and whiskey. Mr. Wax complied by placing the items in a bag, and Mr. Davis immediately fled the store. Id. at 347. A Mrs. Smith witnessed Mr. Davis flee the store, get into a car, and then drive away. Mrs. Smith called Mr. Wax and told him that she had written down the license plate number and gave him the plate number over the phone (and she later gave him the piece of paper with the plate written down).
Mr. Wax testified that when Mrs. Smith called him with the plate number, he wrote the number down on a piece of paper as well. He further testified that he had with him (in court) the paper on which he wrote down the plate number. And over the defendant's objection, the paper was received into evidence. Id. But during cross-examination, Mr. Wax conceded that the paper that was admitted into evidence was not his original notation based on his phone call with Mrs. Smith, but rather was a piece of paper wherein he wrote down the plate number based on his bookkeeper looking at the original notation (which Mr. Max made on an "ice cube receipt" hanging on a nail near the telephone when Mrs. Smith called). With this testimony, the trial court ordered the admitted paper withdrawn but refused to strike Mr. Wax's testimony—the trial court ruled that Mr. Max had properly refreshed his recollection by using the license plate number written down on the stricken exhibit. Id.
On review, the Court properly acknowledged that "the information which Mr. Wax had received from his bookkeeper and had noted on a paper did not serve to refresh his recollection so that at the time of his testimony he had an actual recollection of the license number as given to him by Mrs. Smith." Id. The Court thus explained that "since the information he had received from the bookkeeper was not competent evidence of the license number given to him by Mrs. Smith, his testimony as to the license number should have been stricken." But the Court concluded that the error was harmless because Mr. Wax's paper could properly constitute a past recollection recorded. But the issue was slightly more complex because the writing was the product of two memories:
The memorandum made by Mr. Wax could properly used by him under the rule relating to past memory recorded.... 'The problem is slightly more complex where the memorandum is the joint product of two or more persons. Witnesses W has observed the facts and reported them to X, who has made a record of them. Each swears to the accuracy of his own performance.... [S]o long as a memorandum is produced which would have been admissible if made by the observer himself, reasonably adequate criteria of value are at hand for court and jury, and the contents of the writing should be received.'
Id. at 348 - 349, citing Morgan, The Relation between Hearsay and Preserved Memory, 40 Harv. L. Rev. 712, 720 (1927).
The Court remarked that the comment of the Legislative Committee supported its conclusion: "Under Section 1237, however, the writing may be made not only by the witness himself or under his direction but also by some other person for the purpose of recording the witness' statement at the time it was made.... Sufficient assurance of the trustworthiness of the statement is provided if the declarant is available to testify that he made a true statement and if the person who recorded the statement is available to testify that he accurately recorded the statement." Id. at 350. With respect to the mechanics of applying Section 1237, the Court reiterated that "[w]hile the content of the notation could properly be read into evidence, the court should not have received the paper on which the notation was written in evidence as an exhibit." Id.
Past Recollection Recorded By Someone Else?
In People v. Miller, 46 Cal. App. 4th 412 (1996), two defendants, Eric Hunter and Larry Miller, were convicted of crimes in connection with the attempted murder of two police officers. Id. at 417. Messrs. Hunter and Miller were members of the Four Corner Hustlers gang, which had received "a great deal of law enforcement attention at their customary hangout, an apartment complex...." Id. After the attempted murders, a resident at the complex told police that "weeks before November 1 [the date of the attempted murders], she had overheard [Mr.] Hunter talking with other Four Corner Hustlers about shooting police officers." Id. At trial, the witness' testimony included the following:
Q: Do you remember talking to [a detective] about overhearing a conversation that ... Hunter had?
A: He asked me various things that were being said on the day of the shooting, but not specifically before [the day of the shooting].
Q: Did you ever tell the ... [detective] anything specific about ... Hunter making statements?
A: I don't remember if I made specific statements as to who was talking.
Q: Do you remember telling him that in the weeks before the shooting you specifically heard [Hunter] talking with other members of the [Four Corner H]ustlers about shooting some cops?
A: No, I don't. I don't remember the conversation.
Q: Were you trying to tell him the truth at the time?
A: Yes, I was.
Id. at 419 - 420.
The prosecution then sought to introduce the testimony of the detective who interviewed the witness. The detective testified in an Evidence Code section 402 hearing to the following:
[H]e recorded the witness's statements in a report in order to document them. He said that he took notes during his conversation with the witness, then wrote the report from his notes "up to a few hours" afterwards. He said that the report accurately depicted what the witness had said to him.
Id. at 422.
The trial court admitted the detective's testimony, and the defendants appealed its admission. The Court affirmed the trial court's ruling. The Court explained that the witness (1) remembered discussing matters related to the shooting, but was unable to recall if she told him that Hunter was one of the speakers, and (2) testified that when she spoke with the detective, she was telling the truth. Based on the witness' testimony (and the detective's testimony that he memorialized the witness' statements), the Court ruled that there was a "sufficient basis" for the trial court to "conclude that her statements to the detective were reliable and met the requirements of ... [S]ection 1237." Id. at 424.
Knowing the mechanics and application of Section 1237 is imperative for effective advocacy. It is essential to ensure the proper admission (or exclusion) of evidence that is relevant but forgotten.
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
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