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Memorandum Read Into Evidence as Recollection; Permissible as Exception to Hearsay Rule
Memorandum Read Into Evidence as Recollection; Permissible as Exception to
Hearsay Rule
The Second Circuit Court of Appeals held a memorandum can be read into
evidence under the exception to the hearsay rule for past recollection
recorded, and the admission of a conclusory statement in the memorandum
was harmless. This action was brought by a prisoner at New York's Sing
Sing Correctional Facility alleging excessive force was used against him
by guards. The matter proceeded to a jury trial with a verdict being
entered in favor of the defendant prison guards.
On appeal, the prisoner argued the district court had abused its
discretion by permitting a guard, who remembered nothing of the incident,
to read into evidence a memorandum signed and dated by him on the date of
the incident. The Second Circuit said there would be no abuse of
discretion if Rule 803(5) of the Federal Rules of Evidence is met, which
is an exception to the hearsay rule for past recollection recorded. Before
the memorandum could be read into evidence, a showing was required that
(1) the guard's memory of the events detailed in the memorandum was
sufficiently impaired; (2) he had prepared or adopted the memorandum at or
near the time of the events; and (3) at the time he prepared or adopted
it, it correctly reflected his knowledge of the events. The court held the
guard's testimony met this threshold.
Next, the prisoner argued it was particularly prejudicial for the jury to
hear the concluding sentence of the memorandum, which stated "the amount
of force used was minimal and only that much necessary to gain control of
the inmate." The appeals court held that a better practice would be to
exclude such conclusionary statements, but its admission was harmless in
light of two facts: (1) the guard was available for cross-examination on
this point (e.g., to be asked had he ever concluded in a memorandum that
undue use of force had been used), and (2) other testimony supported
different accounts to allow the jury to draw its own conclusion. The
judgment of the district court was affirmed. See: Parker v.
Reda, 327 F.3d 211 (2d Cir. 2003).
Hearsay Rule
The Second Circuit Court of Appeals held a memorandum can be read into
evidence under the exception to the hearsay rule for past recollection
recorded, and the admission of a conclusory statement in the memorandum
was harmless. This action was brought by a prisoner at New York's Sing
Sing Correctional Facility alleging excessive force was used against him
by guards. The matter proceeded to a jury trial with a verdict being
entered in favor of the defendant prison guards.
On appeal, the prisoner argued the district court had abused its
discretion by permitting a guard, who remembered nothing of the incident,
to read into evidence a memorandum signed and dated by him on the date of
the incident. The Second Circuit said there would be no abuse of
discretion if Rule 803(5) of the Federal Rules of Evidence is met, which
is an exception to the hearsay rule for past recollection recorded. Before
the memorandum could be read into evidence, a showing was required that
(1) the guard's memory of the events detailed in the memorandum was
sufficiently impaired; (2) he had prepared or adopted the memorandum at or
near the time of the events; and (3) at the time he prepared or adopted
it, it correctly reflected his knowledge of the events. The court held the
guard's testimony met this threshold.
Next, the prisoner argued it was particularly prejudicial for the jury to
hear the concluding sentence of the memorandum, which stated "the amount
of force used was minimal and only that much necessary to gain control of
the inmate." The appeals court held that a better practice would be to
exclude such conclusionary statements, but its admission was harmless in
light of two facts: (1) the guard was available for cross-examination on
this point (e.g., to be asked had he ever concluded in a memorandum that
undue use of force had been used), and (2) other testimony supported
different accounts to allow the jury to draw its own conclusion. The
judgment of the district court was affirmed. See: Parker v.
Reda, 327 F.3d 211 (2d Cir. 2003).
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Related legal case
Parker v. Reda
| Year | 2003 |
|---|---|
| Cite | 327 F.3d 211 (2nd Cir. 2003). |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Parker v. Reda, 327 F.3d 211 (2d Cir. 04/28/2003)
[1] U.S. Court of Appeals, Second Circuit
[2] DOCKET NO. 02-0025
[3] 327 F.3d 211, 2003
[4] April 28, 2003
[5] KENNETH PARKER, PLAINTIFF-APPELLANT,
v.
REDA, C.O., NORFLEET, C.O., KRUSEN, SGT. & RITA A. BRANNEN, DEFENDANTS-APPELLEES, ESTATE OF CHARLES HARRISON, SING SING CORR. FAC. & C. GRAINER, SUPT., DEFENDANTS.
[6] SYLLABUS BY THE COURT
[7] Kenneth Parker appeals from a final judgment entered following a jury verdict in the United States District Court for the Southern District of New York (Stein, J.),
[8] DISMISSING HIS EXCESSIVE FORCE SUIT UNDER 42 U.S.C. § 1983. Parker argues that the district court abused its discretion in admitting certain evidence pursuant to Fed. R. Evid. 803(5).
[9] Martin J. Valasek, White & Case, New York, Ny, For Plaintiff-appellant.
[10] Patrick J. Walsh, Assistant Solicitor General, State of New York (eliot Spitzer, Attorney General, Michael S. Belohlavek, Deputy Solicitor General, ON The Brief), New York, Ny, For Defendants-appellees.
[11] Before: Jacobs, Straub, Circuit Judges, And Wood, District Judge. *fn1
[12] The opinion of the court was delivered by: Per Curiam
[13] ARGUED: APRIL 9, 2003
[14] FOR THE FOLLOWING REASONS, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.
[15] KENNETH PARKER'S SUIT UNDER 42 U.S.C. § 1983 SEEKS DAMAGES ON THE GROUND THAT EXCESSIVE FORCE WAS USED AGAINST HIM DURING AN INCIDENT THAT OCCURRED WHILE HE WAS AN INMATE AT SING SING CORRECTIONAL FACILITY. PARKER APPEALS FROM A final judgment entered, after a jury verdict, in the United States District Court for the Southern District of New York (Stein, J.), dismissing Parker's civil rights action against Sergeant Robert Krusen ("Sgt. Krusen"), and Corrections Officers Frank Reda, Barry Norfleet, and Charles Harrison. *fn2 On appeal, Parker argues that the district court abused its discretion under Fed. R. Evid. 803(5) in permitting Sgt. Krusen, who remembered nothing of the incident, to read into evidence a memorandum signed by him and dated May 23, 1999, the day of the incident. Parker seeks a new trial.
[16] DISCUSSION
[17] District courts exercise broad discretion in making evidentiary rulings. This Court will order a new trial only if the introduction of inadmissible evidence was "a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that 'we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir. 1997) (quoting Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992)). "In general, this court will not overturn a trial judge's evidentiary rulings unless the judge acted arbitrarily or irrationally." United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 88 (2d Cir. 1999) (internal quotation marks omitted); see also Perry v. Ethan Allen, Inc., 115 F. 3d 143, 150 (2d Cir. 1997) ("[E]ven an erroneous evidentiary ruling will not lead to reversal unless affirmance would be 'inconsistent with substantial justice.'" (quoting Fed. R. Civ. P. 61)).
[18] I.
[19] Rule 803(5) of the Federal Rules of Evidence is an exception to the hearsay rule for past recollection recorded. To constitute such a recorded recollection, a memorandum must:
[20] concern[] a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, [and be] 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. Fed. R. Evid. 803(5).
[21] If admitted, the memorandum may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party. Id.
[22] Before the Krusen memorandum could be read into
[23] EVIDENCE, A SHOWING WAS REQUIRED THAT (1) SGT. KRUSEN'S MEMORY OF THE EVENTS DETAILED IN THE MEMORANDUM WAS SUFFICIENTLY IMPAIRED; (2) HE PREPARED OR ADOPTED THE MEMORANDUM AT OR NEAR THE TIME OF THE EVENTS; AND (3) AT THE TIME HE PREPARED OR ADOPTED IT, IT CORRECTLY REFLECTED HIS KNOWLEDGE OF THE EVENTS. SEE ID.; BANK BRUSSELS LAMBERT V. CREDIT LYONNAISE, 168 F. SUPP. 2D 57, 62 (S.D.N.Y. 2001); TROUBLE V. WET SEAL, 179 F. SUPP. 2D 291, 300 (S.D.N.Y. 2001); FINCHER V. COUNTY OF WESTCHESTER, 979 F. SUPP. 989, 1005 (S.D.N.Y. 1997).
[24] It is undisputed that, at the time of trial, Sgt. Krusen had no present recollection of the May 23, 1999 incident, and that the first of these requirements was therefore satisfied. Moreover, given that the memorandum bore the signature of Sgt. Krusen and was dated the day of the incident, we think the following excerpts from Sgt. Krusen's testimony are adequate to satisfy the second and third requirements:
[25] Q: Based on your reading of [the memorandum] is that a document that you yourself wrote?
[26] A: Yes it is.
[27] Q: And based upon your reading of that document at the time did you in fact have personal knowledge of what occurred during that incident?
[28] A: Yes.
[29] [Q:] Did you, without describing this document, sir, did you write it?
[30] A: Yes, I did.
[31] Q: And did you write it at or about the date that it bears?
[32] A: Yes, I did.
[1] U.S. Court of Appeals, Second Circuit
[2] DOCKET NO. 02-0025
[3] 327 F.3d 211, 2003
[4] April 28, 2003
[5] KENNETH PARKER, PLAINTIFF-APPELLANT,
v.
REDA, C.O., NORFLEET, C.O., KRUSEN, SGT. & RITA A. BRANNEN, DEFENDANTS-APPELLEES, ESTATE OF CHARLES HARRISON, SING SING CORR. FAC. & C. GRAINER, SUPT., DEFENDANTS.
[6] SYLLABUS BY THE COURT
[7] Kenneth Parker appeals from a final judgment entered following a jury verdict in the United States District Court for the Southern District of New York (Stein, J.),
[8] DISMISSING HIS EXCESSIVE FORCE SUIT UNDER 42 U.S.C. § 1983. Parker argues that the district court abused its discretion in admitting certain evidence pursuant to Fed. R. Evid. 803(5).
[9] Martin J. Valasek, White & Case, New York, Ny, For Plaintiff-appellant.
[10] Patrick J. Walsh, Assistant Solicitor General, State of New York (eliot Spitzer, Attorney General, Michael S. Belohlavek, Deputy Solicitor General, ON The Brief), New York, Ny, For Defendants-appellees.
[11] Before: Jacobs, Straub, Circuit Judges, And Wood, District Judge. *fn1
[12] The opinion of the court was delivered by: Per Curiam
[13] ARGUED: APRIL 9, 2003
[14] FOR THE FOLLOWING REASONS, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.
[15] KENNETH PARKER'S SUIT UNDER 42 U.S.C. § 1983 SEEKS DAMAGES ON THE GROUND THAT EXCESSIVE FORCE WAS USED AGAINST HIM DURING AN INCIDENT THAT OCCURRED WHILE HE WAS AN INMATE AT SING SING CORRECTIONAL FACILITY. PARKER APPEALS FROM A final judgment entered, after a jury verdict, in the United States District Court for the Southern District of New York (Stein, J.), dismissing Parker's civil rights action against Sergeant Robert Krusen ("Sgt. Krusen"), and Corrections Officers Frank Reda, Barry Norfleet, and Charles Harrison. *fn2 On appeal, Parker argues that the district court abused its discretion under Fed. R. Evid. 803(5) in permitting Sgt. Krusen, who remembered nothing of the incident, to read into evidence a memorandum signed by him and dated May 23, 1999, the day of the incident. Parker seeks a new trial.
[16] DISCUSSION
[17] District courts exercise broad discretion in making evidentiary rulings. This Court will order a new trial only if the introduction of inadmissible evidence was "a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that 'we are convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir. 1997) (quoting Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992)). "In general, this court will not overturn a trial judge's evidentiary rulings unless the judge acted arbitrarily or irrationally." United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 88 (2d Cir. 1999) (internal quotation marks omitted); see also Perry v. Ethan Allen, Inc., 115 F. 3d 143, 150 (2d Cir. 1997) ("[E]ven an erroneous evidentiary ruling will not lead to reversal unless affirmance would be 'inconsistent with substantial justice.'" (quoting Fed. R. Civ. P. 61)).
[18] I.
[19] Rule 803(5) of the Federal Rules of Evidence is an exception to the hearsay rule for past recollection recorded. To constitute such a recorded recollection, a memorandum must:
[20] concern[] a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, [and be] 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. Fed. R. Evid. 803(5).
[21] If admitted, the memorandum may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party. Id.
[22] Before the Krusen memorandum could be read into
[23] EVIDENCE, A SHOWING WAS REQUIRED THAT (1) SGT. KRUSEN'S MEMORY OF THE EVENTS DETAILED IN THE MEMORANDUM WAS SUFFICIENTLY IMPAIRED; (2) HE PREPARED OR ADOPTED THE MEMORANDUM AT OR NEAR THE TIME OF THE EVENTS; AND (3) AT THE TIME HE PREPARED OR ADOPTED IT, IT CORRECTLY REFLECTED HIS KNOWLEDGE OF THE EVENTS. SEE ID.; BANK BRUSSELS LAMBERT V. CREDIT LYONNAISE, 168 F. SUPP. 2D 57, 62 (S.D.N.Y. 2001); TROUBLE V. WET SEAL, 179 F. SUPP. 2D 291, 300 (S.D.N.Y. 2001); FINCHER V. COUNTY OF WESTCHESTER, 979 F. SUPP. 989, 1005 (S.D.N.Y. 1997).
[24] It is undisputed that, at the time of trial, Sgt. Krusen had no present recollection of the May 23, 1999 incident, and that the first of these requirements was therefore satisfied. Moreover, given that the memorandum bore the signature of Sgt. Krusen and was dated the day of the incident, we think the following excerpts from Sgt. Krusen's testimony are adequate to satisfy the second and third requirements:
[25] Q: Based on your reading of [the memorandum] is that a document that you yourself wrote?
[26] A: Yes it is.
[27] Q: And based upon your reading of that document at the time did you in fact have personal knowledge of what occurred during that incident?
[28] A: Yes.
[29] [Q:] Did you, without describing this document, sir, did you write it?
[30] A: Yes, I did.
[31] Q: And did you write it at or about the date that it bears?
[32] A: Yes, I did.