Witness memories, however flawed or imprecise, are often the core evidence at trial. Yet anyone who studies memory knows that recollection of event gist (“I’ll never forget being robbed”) may be long-lasting but accurate recall of event detail fades within hours, or at most a day, after the occurrence. This is shown in what scientists have dubbed the “Ebbinghaus curve.”
And when the witness forgets a detail (or more) the trial lawyer’s arsenal has various tools to respond, courtesy of the Rules of Evidence. The three main ones are the act of refreshing the witness’ recollection (Rule 612); introducing the witness’s own or adopted statement as past recollection recorded (Rule 803(5)); and the underused hearsay Rule 804, which permits use of prior testimony, dying declarations and statements against interest when a lack of memory renders the declarant “unavailable,” i.e., when the witness “testifies to not remembering the subject matter…”
All of these exceptions were written with the sincere but forgetful witness in mind. They of course are equally available when a witness feigns a loss of memory, a phenomenon alleged to occur with particular regularity and significant consequence in criminal prosecutions. The feigned amnesia phenomenon is viewed as a byproduct of witness intimidation, claimed to be pervasive. See, e.g. Browning, ARTICLE: #SNITCHES GET STITCHES: WITNESS INTIMIDATION IN THE AGE OF FACEBOOK AND TWITTER, 35 Pace L. Rev. 192 (2014); NOTE: FORFEITURE OF CONFRONTATION RIGHTS POST-GILES: WHETHER A CO-CONSPIRATOR’S MISCONDUCT CAN FORFEIT A DEFENDANT’S RIGHT TO CONFRONT WITNESSES, 14 N.Y.U. J. Legis. & Pub. Pol’y 281 (2011).
Regardless of whether those claims and data are accurate, the sense that this is occurring is the motivation for a change in Pennsylvania Evidence law. Effective April 1, 2017, a claim of loss of memory will add three categories of out-of-court statements that become admissible for their truth. The new Pennsylvania rule is 8031.(4). In its entirety, it reads as follows:
Prior Statement by a Declarant-Witness Who Claims an Inability to Remember the Subject Matter of the Statement. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, unless the court finds the claimed inability to remember to be credible, and the statement:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic recording of an oral statement.
The COMMENT to the Rule explains its purpose:
Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. The purpose of this hearsay exception is to protect against the “turncoat witness” who once provided a statement, but now seeks to deprive the use of this evidence at trial. It is intended to permit the admission of a prior statement given under demonstrably reliable and trustworthy circumstances…when the declarant-witness feigns memory loss about the subject matter of the statement.
A prior statement made by a declarant-witness having credible memory loss about the subject matter of the statement, but able to testify that the statement accurately reflects his or her knowledge at the time it was made, may be admissible under Pa.R.E. 803.1(3). Otherwise, when a declarant-witness has a credible memory loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).
Litigators contemplating this Rule should consider the following:
- The Rule is not limited to criminal cases. A statement made to an insurance investigator may now become admissible as long as the witness initialed it, as long as at least the investigator claims the witness “adopted” it. [This is because under Rule 803.1, unlike the law governing past recollection recorded hearsay. the declarant herself need not admit to having adopted it – the witness to the making of the statement may do so.]
- The Rule cannot trump the Confrontation guarantee in criminal cases, but that probably offers little or no protection. Because the declarant is on the stand and subject to questioning, the claimed or real loss of memory will not be deemed sufficient to establish a denial of the right of meaningful cross-examination. As the Tennessee Supreme Court explained two years ago, “even when a trial court admits a witness’ hearsay statements as substantive evidence, and the witness claims at trial not to remember the information contained within the hearsay statements, the Confrontation Clause is not violated when a defendant has an opportunity to cross-examine the witness at trial.” State v. Davis, 466 S.W.3d 49, 69 (Tenn. 2015).
- Admissibility of the out-of-court statement does not mandate believability. The tools of a skilled litigator may still be deployed to question the circumstances and reliability of the prior statement. It may have been obtained after ours at a police station; it often will not be under oath; and it may be found that the language of the statement is not that of the intellectual level or natural phrasing of this declarant. Conversely, where the circumstances show clear reliability and an absence of coercion, the statement may be offered as powerful proof, probably of a better quality than testimony offered months or years after the incident.
A recent (early 2017) Pennsylvania Superior Court OPINION affirmed the general proposition that the words ‘I don’t remember’ are not subject to impeachment with a prior inconsistent statement, as the witness has offered nothing substantive to contradict. Commonwealth v. Watley, 2016 PA Super 311 (12/29/16)(“a mere failure of recollection…might not be inconsistent with an earlier statement…”). That decision, reflecting long-standing evidence principles, will no longer be the law in Pennsylvania, at least if the prior statement was signed and adopted, electronically recorded, or made under oath.