If the Officer Can't Remember, Then Can The Officer Just Read His Police Report Out Loud to the Jury at Trial?

What happens if the police officer cannot remember anything about a portion of a criminal investigation? For example, in many driving under the influence (DUI) cases in Florida, the arresting officer has a very difficult time remembering the details about how the subject did on field sobriety exercises. This problem is particularly common when there is no video recording of the exercises.

Although some officers pretend to remember after looking at their report, what if the officer just admits that he doesn't remember? In other words, what if the officer says he has no present independent recollection whatsoever and that there is no way to refresh the recollection by looking at the report?

Can the prosecutor just ask the officer to read portions of the police report out loud to the jury as a past recollection recorded under Section 90.803(5)? Especially in misdemeanor cases when the prosecutor are less experienced and the officers are less prepared, the issue comes up all the time.

The answer is "no" and this article explains why.

What is a Past Recollection Recorded?

When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. Section 90.803(5) provides:

(5) RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
To lay a proper foundation, the prosecutor would ask the witness the following questions:
  • does the officer now have insufficient recollection to enable the officer to testify fully and accurately? 
  • was a "memorandum or record" created concerning the officer's observations?
  • did the officer once have knowledge about those observations?  
  • was the memorandum or record report made by the officer when the matter was fresh in the officer's memory? 
  • does the memorandum or record reflects that knowledge correctly?

The Police Report isn't a Qualifying Memorandum or Record

Even assuming the prosecutor attempts to lay the proper predicate, the defense attorney should argue that the past recollection recorded exception to the hearsay rule under Section 90.803(5) does not apply to the reading of a police report because the report would not qualify as a "memorandum or record."

First, the term "report" is not included in Section 90.803(5) at all. The term "report" does appear in Section 90.803(8), which provides the public records or reports exception specifically excludes reports made in criminal cases.

Section 90.803(8) provides:

(8) PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

This provision shows that the legislature draws a distinction between "records" and "reports," which supports the position that reports are not including within "records" as contemplated by the hearsay exceptions.

Although that same exclusion for police reports (created by the officer concerning his observations in a criminal case) is not specifically included in subsection (5), it is required by Florida law for several reasons.

The court in State v. Donner, 11 Fla. L. Weekly Supp. 976b (2004), explained it this way:

Under this section [Section 90.803(8) for public records and reports], the [officer's] report would not have been admissible since it was a police report, and such report are excluded from the public records hearsay exception. The Florida Supreme Court clearly stated this interpretation in Burgess v. State, where it would not allow admission of a police report since it was hearsay and therefore inadmissible in an adversarial criminal proceeding. 831 So.2d 137, 141 (Fla. 2002). 

The court also cited Professor Ehrhardt, who found that this limitation is "based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observations by public officials in other cases because of adversarial nature of the confrontation between the police and the defendant." Charles Ehrhardt, Florida Evidence 786 (2003 Ed.).

The court did note that while some statutes provide for the use of a police report in trial proceedings; this applies only when the legislature has expressly permitted such use. Burgess, 831 So.2d at 141. Since no such statute exists which would have expressly allowed [the officer's] arrest report to be introduced, it therefore was inadmissible pursuant to Section 90.803(8). 

Additionally, in Burgess v. State, 831 So.2d 137 (Fla. 2002), the Florida Supreme Court found:
[T]he information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding. See Bolin v. State, 736 So. 2d 1160, 1167 (Fla.1999). Nor does the information contained in the report in question fall under any recognized exception to the hearsay rule. See §§ 90.801-805, Fla. Stat. (1999). 

So the correct objection for the criminal defense attorney is that:
  • the officer has a lack of personal knowledge (since the officer is relying on hearsay statements instead of his present recollection as he sits on the stand); 
  • the hearsay statements are also "not relevant" since the witness has no recollection that can be refreshed;
  • the words in the police report are "hearsay" and do not fall under the hearsay exception contained in Section 90.803(5) (for the reasons explained above) or any other hearsay exception; and 
  • if the judge finds that the statements are not hearsay because they are not offered for the truth of the matter asserted then they are especially "irrelevant" because what relevant purpose would those statements serve if not for the truth of the matter asserted?
Also, you can't confront a witness about what they can't remember, so I would also add a "confrontation clause" argument.

Strangely, this issue has come up in my last three jury trials. In my last trial, the judge was so frustrated with the prosecutor's lack of preparation and the officer's inability to remember the details, that the court was actually contemplating just letting the prosecutor have the officer read the report.

The court listened to these argument outside the presence of the jury and then changed the ruling and told the jury that he made a mistake because the officer is not allowed to read from a police report when he can't remember what actually happened.

Nothing is more devastating to the case then watching the officer read from a report. Hold the prosecutor's feet to the fire when they try this. Also, by objecting, you are making the point to the jury that the officer can't remember these important details and shouldn't be trusted on any of the details he claims to remember.

Let me know how you handle this issue or whether you have ever seen it come up in trial in the comments below.

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