Play It Again: Court of Appeals of Minnesota Finds No Problem with Replaying Victim’s Statement During Deliberations

Similar to its federal counterpart, Minnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

While a “recorded recollection” cannot be introduced as an exhibit by the proponent, can it be replayed for the jury during deliberations? According to today’s opinion by the Court of Appeals of Minnesota in State v. Johnson, 2015 WL 1514071 (Minn.App. 2015), the answer is “yes.” I disagree.

In Johnson, Tyrone Johnson was convicted of first-degree and third-degree assault based on attacking D.A. late on the night of August 11, 2013. The assault came to the attention of the police when D.A. called 911 and subsequently gave a recorded statement to Police Officer Scott Wenshau.

At trial, D.A. was unable to remember fully the events of August 11–12. He remembered drinking with Johnson and being in the hospital but was unsure what had happened to him and did not recall being assaulted, calling 911, or talking to police. The state presented the audio recordings of D.A.’s 911 call and his statement to Officer Wenshau; Johnson did not object to the recordings being received as exhibits.

Thereafter,

During its deliberations, the jury asked to listen to D.A.’s statement to Officer Wenshau. The district court brought the jury into the courtroom and replayed the recording.

After he was convicted, Johnson appealed, claiming that the trial court committed plain error by allowing the prosecution to introduce the recordings of D.A.’s statements as exhibits under Minnesota Rule of Evidence 803(5). The Court of Appeals of Minnesota disagreed,* concluding that 

the plain language of rule 803(5) precludes admission of a document—a “memorandum or record”—but does not expressly prevent a district court from permitting more than one auditory presentation of the evidence. This distinction is consistent with the concern that providing the jury a “hearsay document” could lead it to place “undue emphasis on the statement.” Minn. R. Evid. 803(5) 1989 comm. cmt. And neither the rule nor the comment suggest a limit on the number of times the jury may hear a recorded recollection.

My first response is that the Court of Appeals seems to be playing semantic gymnastics. According to the court, a “memorandum or record” is a document, meaning that a recording is somehow not also a “record.” Does that make any sense? What makes sense to me is that Rule 803(5) precludes the proponent from introducing a recorded recollection “as an exhibit,” and the Court of Appeals itself referred to the recordings as exhibits when noting that Johnson did not object to their admission. Indeed, if neither the recording of D.A.’s 911 call nor the recording statement to Officer  Wenshau constituted a “memorandum or record,” they would have been beyond the scope of Rule 803(5).

Moreover, as the Court of Appeals itself noted, the issue with admitting recorded recollections as exhibits is that such use could lead to the jurors placing “undue emphasis on the statement.” In other words, courts don’t want to give recorded recollections preference over in-court testimony. But isn’t that exactly what happened in Johnson, with the prosecution playing D.A.’s recorded statement for a second time during jury deliberations?

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*The court also held that Johnson couldn’t establish plain error, which was required because he didn’t object to the recording being admitted as an exhibit. I don’t have a problem with this conclusion.

-CM