Shannon v. Koehler - Northern District of Iowa
Shannon v. Koehler - Northern District of Iowa
Shannon v. Koehler - Northern District of Iowa
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knew at the time. The defendants also assert that a taped statement need not be verbatim<br />
to be admissible. Finally, the defendants contend that Navrkal’s written and taped<br />
statements are consistent in their descriptions <strong>of</strong> events, indicating that the statements did<br />
accurately reflected Navrkal’s knowledge at the time they were made.<br />
Hearsay is “a statement, other than one made by the declarant while testifying at<br />
trial, <strong>of</strong>fered in evidence to prove the truth <strong>of</strong> the matter asserted.” FED. R. EVID. 801(c).<br />
Both Navrkal’s voluntary witness statement and her taped statement are out <strong>of</strong> court<br />
statements made by Navrkal, <strong>of</strong>fered in evidence to prove the truth <strong>of</strong> the matter asserted.<br />
I have already ruled that Navrkal’s taped statement is hearsay not subject to any<br />
exception, 18 but I will entertain the defendants’ argument that the taped statement and the<br />
voluntary witness statement are recorded recollections. This case presents the somewhat<br />
unusual situation in which the declarant <strong>of</strong> the recorded recollection is unavailable to<br />
testify. 19 Navrkal’s unavailability does not preclude the application <strong>of</strong> 803(5), as the<br />
“availability <strong>of</strong> [the] declarant [is] immaterial” for all Rule 803 exceptions. See FED R.<br />
EVID. 803. But see Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (“Evidence <strong>of</strong><br />
recorded recollection . . . is inadmissible unless a witness, who once had knowledge <strong>of</strong><br />
what the record contains, testifies.”). The Eighth Circuit Court <strong>of</strong> Appeals has determined<br />
that when a declarant is unavailable, a deposition may suffice to lay a foundation for a<br />
18 I rejected the defendants’ arguments that Navrkal’s taped statement is admissible<br />
under Rules 803(2), 803(6), or 807. Memorandum Opinion And Order at 35 (docket no.<br />
91); Memorandum Opinion And Order at 9 (docket no. 96).<br />
19 Defendants indicate that Navrkal is not available to testify. In the parties’ final<br />
pre-trial order, the defendants state, “Ms. Navrkal is expected to testify by deposition<br />
regarding her knowledge <strong>of</strong> the incident on September 13, 2006 in her capacity as an<br />
eyewitness. Defendants do not guarantee Ms. Navrkal’s presence.” Final Pretrial Order<br />
at 3 (docket no. 115).<br />
47