Every few years, the New York Court of Appeals considers an evidence issue that would make a challenging law school exam question. This year’s case is People v. Tapia, 2019 WL 1440800, decided earlier this month.
On Nov. 2, 2008, Police Officer Charlie Bello and Lieutenant James Cosgrove were driving back to their precinct at about 3:30 a.m. when they saw Charles Tapia “body slam” a man outside a bar and drag him between two parked cars. The officers left their vehicle, and Lieutenant Cosgrove pulled Tapia off the victim, who was bleeding profusely from his neck and face. Officer Bello observed a shattered beer bottle on the ground where the victim had been assaulted, but did not collect the glass as evidence.
Tapia was indicted for assault in the first degree (assault with a dangerous instrument). At trial, the victim testified that Tapia had attacked him from behind and that he had not realized he was bleeding until the police intervened. The People also called an emergency room physician, who testified that the lacerations to the victim’s face and neck were consistent with being cut with glass.
Officer Bello and Lieutenant Cosgrove testified for the People. The trial took place four years after the incident, and Lieutenant Cosgrove, who had retired, had no memory of it. All he could testify was that intervening in bar fights was all too common in his years on the job. Moreover, showing him his grand jury testimony, which he gave a few days after the incident, did not refresh his recollection. He was confident, however, that he had testified truthfully and accurately at the time.
Against this backdrop and over a defense objection, the trial court admitted Lieutenant Cosgrove’s grand jury testimony under the past recollection recorded exception to the hearsay rule. (The grand jury reporter had certified that the transcript was accurate.) The court instructed the jury that the transcript was “not of itself independent evidence of the facts contained therein but was auxiliary to the testimony of the witness.”
The jury acquitted Tapia of assault in the first degree but convicted him of attempted assault in the first degree. A divided Court of Appeals (4-3), in an opinion by Chief Judge Janet DiFiore, upheld the conviction, ruling that the trial court was correct in admitting Lieutenant Cosgrove’s grand jury testimony.
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Should Lieutenant Cosgrove’s grand jury testimony have been admitted under the past recollection recorded exception? Perhaps the best place to begin is the New York Unified Court System’s recently published Guide to New York Evidence. Prepared by a panel of distinguished state judges, the Guide seeks “to bring together in one document … New York’s existing rules of evidence.” It describes the Past Recollection Recorded exception this way:
A memorandum or record made or adopted by a witness concerning a matter about which that witness had knowledge, but about which the witness lacks sufficient present recollection to enable the witness to testify fully and accurately, even after reading the memorandum or record, is admissible, provided: (a) the memorandum or record was made or adopted by the witness when the matter was fresh in the witness’s memory and (b) the witness testifies that the memorandum or record correctly represented the witness’s knowledge and recollection when made.
The rule is derived from the 1992 Court of Appeals decision in People v. Taylor, 80 N.Y.2d 1 (1992).
Most textbooks give this example of the past recollection recorded exception: A witness observes a man exit a bank, gun in hand and a duffle bag strewn over his shoulder. The man jumps into a waiting getaway-car, and the witness writes down the car’s license plate number on a scrap of paper. A year later, at the man’s trial for robbery, the witness cannot recall the license plate and showing her the scrap of papers does not refresh her recollection. She is certain, however, that she recorded the license plate number accurately at the time. The scrap of paper is admissible as a past recollection recorded, the foundation elements for the exception having been met.
Now change the facts slightly. The witness does not write down the license plate number but within minutes a police officer arrives, and she tells it to him. He records it in his notebook but does not ask her to sign the notebook or otherwise formally adopt it as her own. At trial, the witness does not recall the number, and showing her the officer’s notebook entry does not refresh her recollection. She recalls, however, telling the officer the number and is certain that she conveyed it accurately. The next witness is the officer, who testifies that he accurately wrote down what she said, and his notebook entry is offered into evidence.
Admissible? Although the rule as stated in the Guide might suggest otherwise, case law, state and federal, holds that “jointly produced past recollection” may qualify under the exception. As one case puts it, “if A has reported events to B, who has recorded them, the record made by B is admissible if A will testify that he reported correctly and if B will testify that he recorded correctly.” Commonwealth v. Galvin, 27 Mass. App. Ct. 150, 152 (1989). In this scenario, it takes two to admit the hearsay evidence (the eyewitness and the officer), but two can do the work of one.
Should it matter if the document at issue is grand jury testimony? It is hard to see why it should. Assume the witness did not tell the officer at the scene but testified the next day in the grand jury. There, she reported the license plate number, testifying that it was still fresh in her mind. At trial a year later, she cannot recall the license plate number (and the transcript of her grand jury testimony does not refresh her recollection), but she is sure that what she told the grand jury was accurate. Through the reporter, the grand jury testimony is offered into evidence. If “jointly produced past recollection recorded” passes muster, then the grand jury testimony should be admitted.
Were it otherwise, the result would be anomalous. We know that if a witness showed up the day after the robbery at the police precinct and told an officer the license plate number and if the officer recorded it in his notebook, the notebook entry would be admissible at trial, assuming the foundation requirements of the exception were met. The witness’ grand jury testimony is more accurate than the police officer’s notes, so admitting the latter but excluding the former would make little sense.
Not surprisingly, the Appellate Divisions and courts in other jurisdictions have held that grand jury testimony may be admitted under the past recollection recorded exception. See, e.g., People v. Linton, 21 A.D.3d 909 (2d Dept. 2005); People v. Turner, 210 A.D.2d 445 (2d Dept. 1994); People v. Green, 159 A.D.2d 432 (1st Dept. 1990); Priester v. State, 478 S.W.3d 826 (Tex. 2015); United States v. Kortright, 2011 WL 4406352 (S.D.N.Y.); State v. Gorman, 854 A.2d 1164 (Maine 2004); Isler v. United States, 824 A.2d 957 (D.C. 2003); United States v. Shorter, 188 F.3d 505 (4th Cir. 1999); Carey v. United States, 647 A.2d 56 (D.C. 1994); United States v. Patterson, 678 F.2d 774 (9th Cir. 1982); United States v. Barrow, 363 F.2d 62 (3d Cir. 1966).
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Did the admission of Lieutenant Cosgrove’s grand jury testimony violate the Sixth Amendment’s Confrontation Clause? (A claim that admission of the grand jury testimony violated the state constitution was not preserved.) As Chief Judge DiFiore concluded, the decision of the U.S. Supreme Court in Owens is dispositive on this issue. United States v. Owens, 484 U.S. 554 (1988). There, John Foster, a counselor at a federal prison, was brutally beaten with a metal pipe. Three weeks after the attack, while still in the hospital, Foster told an FBI agent that Owens was his assailant and identified him from a photo array. At trial, Foster testified that he remembered identifying Owens in his FBI interview, but could not recall the incident or explain why he had made the identification. His memory loss was profound. On these facts, his prior identification was admitted under Federal Rule of Evidence 801(d)(1)(C).
In an opinion by Justice Antonin Scalia, the Supreme Court held that the Confrontation Clause was not violated. As Justice Scalia wrote, “the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross examination) … the very fact that he has a bad memory … suffices to establish the constitutionally requisite opportunity for cross-examination.” If that was true for Foster, it is true for Lieutenant Cosgrove as well.
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Judge Wilson, joined by Judges Jenny Rivera and Eugene Fahey, dissented in Tapia. The dissenters’ principal argument was that CPL 670.10 rendered Lieutenant Cosgrove’s testimony inadmissible. That provision authorizes the admission of the former testimony of an unavailable witness in a criminal trial only if the prior testimony was “given by a witness at (a) a trial of an accusatory instrument or (b) a hearing upon a felony complaint conducted pursuant to Section 180.60 a preliminary hearing, or (c) an examination of such witness conditionally, conducted pursuant to article six hundred sixty.” The Court of Appeals has construed the provision strictly, so that prior testimony taken at a police disciplinary proceeding or at a Wade hearing is not admissible under CPL 670.10. People v. Harding, 37 N.Y.2d 130 (1975); People v. Ayala, 75 N.Y.2d 422, 429 (1990).
To be sure, CPL 670.10 does not authorize the admission of a witness’ grand jury testimony at trial if the witness is unavailable to testify. A witness is not subject to cross-examination in the grand jury, and therefore his grand jury testimony is not admissible as former testimony. But simply because grand jury testimony is inadmissible under CPL 670.10 does not mean that it can never be admitted.
Consider two examples. First: Assume a defendant procures the unavailability of a witness (he has the witness killed on her way to testify). The witness’ grand jury testimony is admissible under the so-called forfeiture exception to the hearsay rule, as enunciated in People v. Geraci, 85 N.Y.2d 359 (1995). See also Fed. R. Evid. 804(6). Second: Assume a witness testifies in the grand jury and identifies the defendant as the perpetrator. Subsequent to his grand jury testimony, the witness is arrested and has a pending charge against him at the time of trial. If the witness testifies at trial and is cross-examined in an effort to show that his trial testimony is a recent fabrication intended to curry favor with the prosecution, then his grand jury testimony will be admissible as a prior consistent statement to rebut that contention. People v. Seit, 86 N.Y.2d 92 (1995).
(Moreover, as Chief Judge DiFiore noted in her majority opinion, grand jury testimony may also be admitted at the request of a defendant where the witness is unavailable and the testimony is exculpatory and reliable. In such circumstances, “the narrow confines of CPL 670.10” do not bar admissibility. People v. Robinson, 89 N.Y.2d 648 (1997).)
In short, if grand jury testimony is admissible under another hearsay exception, the fact that it is inadmissible as former testimony under CPL 670.10 is inconsequential.
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Large portions of the majority and dissenting opinions in Tapia are devoted to a discussion of People v. Green, 78 N.Y.2d 1029 (1991), a 1991 three-sentence memorandum opinion. One can learn the facts of Green only by reading the briefs and the appellate record. What happened there is this: A child witnessed a shooting and testified in the grand jury that Green was the shooter. At trial, two years later, the child had no memory of the events. In deference to the child’s age, the court then directed that the child be examined in camera. There, the prosecutor and defense counsel questioned the child, who was not under oath, and the child said that he had no recollection of the incident or even of having testified before the grand jury. The child’s grand jury testimony, together with the in camera examination, was then read to the jury. The Court of Appeals held that the grand jury testimony was inadmissible under CPL 670.10.
In his Tapia dissent, Judge Wilson wrote that the only difference between Tapia and Green was the “immaterial difference … that in view of the child’s young age, the court took his testimony in camera, and had it read to the jury,” whereas Lieutenant Cosgrove testified at trial in open court. But the difference between the two cases is not “immaterial.”
The child witness in Green did not testify in open court, so the jury could not observe his demeanor. Moreover, the child was not under oath when he was questioned. As the Supreme Court has observed, “the combined effect of … oath, cross-examination and observation of demeanor by the trier of fact … serves the purposes of the Confrontation Clause.” Maryland v. Craig, 497 U.S. 836 (1990). Two of those elements were missing in Green, and therefore the child was not a witness for purposes of the Confrontation Clause or for the past recollection recorded exception.
If more is needed to distinguish Tapia from Green, there is this: The child in Green did not report that he had testified accurately in the grand jury. Indeed, as noted, he had no memory of ever having testified before the grand jury. Thus, the foundation requirements for the past recollection recorded exception were not met in Green—the child was not a witness at trial and he did not confirm that he had testified accurately in the grand jury. It is therefore hardly surprising that no one in that case attempted to argue that the child’s grand jury testimony was admissible under the exception. (The trial judge in Green admitted the child’s grand jury testimony under the residual exception. The Court of Appeals has held that state law, unlike federal law, does not include a residual exception. People v. Nieves, 67 N.Y.2d 125, 131 (1986).)
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On one point, the dissenters in Tapia have the better of it. The jurors were instructed that Lieutenant Cosgrove’s grand jury testimony was “not of itself independent evidence of the facts contained therein but rather was auxiliary to the testimony of the witness.” That is New York law, but it is gobbledygook. Lieutenant Cosgrove’s in-court testimony had almost no substance, and his grand jury testimony was admitted precisely because it had substance. Consider the classic past recollection recorded example in which the witness has recorded the license plate number on the scrap of paper. To tell the jury that the scrap of paper is not being admitted as independent evidence of the facts contained therein is to speak in tongues.
A good rule for modern evidence law is that jury instructions should be comprehensible, and this one was not.
Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.