Citation. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999)
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Brief Fact Summary.
The defendant, Baker (the “defendant”) was convicted of murder and burglary.
Synopsis of Rule of Law.
A document or other piece of evidence need not have been prepared by the witness, or pass any other test of reliability when it is being used solely to refresh recollection. This more demanding standard is only required when the evidence in question is sought to be admitted as past recollection recorded.
The defendant was convicted of murder and burglary. The defendant appealed on the basis of an evidentiary ruling at trial in which the trial justice refused to allow the key prosecution witness to refresh his recollection with a police report prepared by other officers, and in which his name was mentioned.
Whether the defense should have been allowed to refresh the recollection of the officer with a police report prepared by other officers?
Yes. The defense had the right to attempt to refresh recollection, as the report was never to be received into evidence, but only used to attempt to refresh the recollection of the witness, who would then testify.
There is a difference between present recollection refreshed and past recollection recorded, which is at the heart of the dispute in this case. A witness’s present recollection may be refreshed with a variety of documents. These documents never come into evidence; only the testimony of the witness comes into evidence. This difference assures that, if the document does not succeed in refreshing the recollection of the witness, the witness will still indicate that he does not remember, as he is under oath and subject to cross examination. Past recollection recorded is a different matter and must pass a more rigorous standard to be allowed. Because a witness will read directly from the document that records his past recollection, that document essentially comes into evidence, and a far more deliberate foundation must be laid. The witness must be able to show that he prepared the document himself or read it at the time of its preparation, and that he can vouch that, at the time, he knew it to be accurate.