Last week, the Tennessee Supreme Court published the opinion in State v. Davis, a case that brought up two distinct issues:
1. What happens when a witness at trial can't remember anything, but they testified during the preliminary hearing and gave a written statement days after the incident; and
2. Inconsistent verdicts - does it matter if the jury convicts a defendant of two crimes with different mens rea requirements (i.e. second-degree murder and reckless homicide)?
(Spoiler alert: the Court upheld Davis's conviction.)
For now, I'm only dealing with the first issue - the forgetful witness. Like so many cases, this was one dragged through the system, but at a truly glacial pace - the murder occurred in 2006, the trial in 2011. At the time of trial, the witness (Spencer) was fifteen years-old, which means he was around the tender age of ten when he first made statements to the police in 2006. Spencer was the one witness that definitively put the gun in Marlo Davis's hand. During the initial investigation, the witness completed a written statement, and after the Defendant's arrest, testified at the preliminary hearing. However, when 2011 rolls around, the witness can't remember anything on the witness stand. He can't remember walking home from school that day, seeing someone get shot, or even testifying at the preliminary hearing in court. The defense argued the witness was faking his memory loss and objected to the admission of his preliminary hearing testimony and written statement to police. The trial court admitted both pieces of evidence and the Tennessee Supreme Court upheld that decision.
- there was no doubt about it, both the written and recorded oral testimony were hearsay.
- the written statement was admitted as exceptions to the Hearsay Rule as recorded recollection and a prior inconsistent statement (pursuant to Rule 803(5) and 803(26).
- the recorded preliminary hearing testimony was admitted as exceptions to the Hearsay Rule as a prior inconsistent statement and testimony from an unavailable witness (pursuant to Rule 803(26) and Rule 804(b)(1)).
- the Supreme Court ignored the defense argument that the witness was just faking his forgetfulness. They found that, while it is nearly impossible for a judge to tell if a witness's memory has failed due to time, or due to a fear of reprisal, or for some other reason, the judge can access the reliability and trustworthiness of the recorded recollection. In other words, a judge may not know why the witness is unable to testify at trial, but they are able to tell whether the recorded statements are reliable enough for a jury to hear. There was no reason to believe that Spencer's statements to police following the murder were inaccurate.
- the Supreme Court also held, "for the purposes of Tennessee Rule of Evidence 803(26), a prior statement about events that a witness claims at trial to be unable to 'remember' is inconsistent with the witness' trial testimony."
- here, the trial judge really laid into the forgetful witness, and it didn't matter who asked him the questions - he claimed not to remember anything. The Tennessee Supreme Court found that this met the requirement that a trial court instruct a forgetful witness to testify if there are concerns that the witness is faking his memory loss. Spencer was deemed unavailable and his prior testimony admissible.
The most disappointing aspect of this decision (from the defense perspective) is that the Tennessee Supreme Court didn't carve out any protection under the Confrontation Clause. Following prior decisions, the Court held that Marlo Davis's right to confront the witness was not violated, because the witness was physically present at the trial - even if he had zero recollection of any of his substantive testimony.
The take-away: As attorneys, every single hearing is critical, because we never know if we'll have an opportunity to cross-examine the witness again. And, as Justice Lee points out in her concurrence: memories fade. Cases like this emphasize the importance of being fully prepared before proceeding with a preliminary hearing - it may be your client's only chance at confrontation.
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