State v. Alvarado:

Recorded Recollection Primer

By Brett A. Purtzer; Sept 2001

     ER 803(a)(5) relates to the admissibility of documents purported to contain the recorded recollection of a witness.  If a statement meets the foundational requirements, it is admissible as an exception to the hearsay rule, regardless of the availability of the witness.  A statement is properly admitted pursuant to ER 803(a)(5) when certain factors are met:

        The court "must examine the totality of the circumstances, including (1) whether the witness disavows accuracy; (2) whether the witness avowed accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement.

State v. Alvarado, 89 Wn.App. 543, 548, 949 P.2d 831 (Div. I. 1998).  The existence of the requirements is determined by the judge under rule 104(a) State v. Mathes, 47 Wn.App. 863, 867, 737 P.2d 700 (1987).

     The Alvarado court noted that under these circumstances, the witness normally testifies that, despite lack of memory, he or she remembers making the statement, and that it was accurate when made.  89 Wn.App. at 550, citing Robert H. Aronson, The Law of Evidence in Washington, 803-35.0 (1994).  The court also noted that the Washington Practice Manual indicates that the declarant should be required at trial to testify to the accuracy of the memorandum or record.  Id., citing 5B Karl B. Tegland, Washington Practice § 368 at 187 (3rd Ed. 1989).  However, the court did not adopt Tegland's rule, noting "what is ideal in theory may be some distance from what is possible in practice."  The court went on to state:

        Tegland implicitly acknowledges this, noting that a witness's testimony that he or she habitually records matters accurately, or would not have signed an inaccurate memorandum, may be sufficient in lieu of an ideal foundation. See Tegland, supra § 368 at 186-187.  (Test cited with approval by the Mathes majority, 47 Wn.App. at 867-68.)  The facts of a particular case may not even allow this much, however, and we've concluded that the rule does not require it.  Indeed, the rule applies regardless of the declarant's availability to testify, and thus, apparently, does not contemplate that the declarant will always testify, let alone affirmatively vouch for the record's accuracy. 

89 Wn.App. at 550. (Emphasis added).  The court then stated the rule thus:

        We hold that the requirement that a recorded recollection accurately reflect the witness's knowledge may be satisfied without the witness's direct averment of accuracy at trial. The Court must examine the totality of the circumstances, including (1) whether the witness disavows accuracy; (2) whether the witness avowed accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement.

89 Wn.App. at 551.

     Alvarado sets the framework for admitting a recorded recollection whether the witness is available or not.  When dealing with a recalcitrant witness, or one that has died, but a previously provided statement exists, you should be able to offer the statement into evidence based upon the teachings of Alvarado if all foundational requirements are met.