Shannon v. Koehler - Northern District of Iowa

Notably, the Sixth Circuit Court of Appeals in Porter highlighted that the
declarant’s testimony at trial assuaged any potential concerns about reliability of the
recorded recollection:
Rule 803(5) . . . is not of a particularly unreliable genre. This
is because the out-of-court declarant is actually on the witness
stand and subject to evaluation by the finder of fact . . . . If
the jury chose to believe what [the declarant] said in the
recorded statement rather than what she said while testifying,
that decision was at least made based upon which it observed
and heard from her in court.
Id. (citing United States v. Williams, 571 F.2d 334, 350 (6th Cir. 1978)); see also Parker,
327 F.3d at 215 (finding that police officer’s memorandum was a recorded recollection
where, even though he did not remember the events described, he testified that he had
“reason to believe” that it accurately reflected his knowledge at the time; and concluding
that the officer’s availability for cross-examination sufficed to ensure the statement’s
reliability).
The circumstances here do not indicate that Navrkal’s recorded statements
accurately reflected the knowledge she had about the incident. Her statements may
otherwise meet the requirements for a recorded recollection: she has no present
recollection of what occurred, see Appendix to Plaintiff’s Second Motion in Limine,
Videotaped Deposition of Cristina Navrkal at 35 (docket no. 116-3); she did appear to have
at least some knowledge of what occurred because she was an eyewitness (though she was
intoxicated at the time); and she made the statements shortly after the incident, which
suggests they were made while the knowledge was fresh in her mind. Nevertheless, her
statements fail to meet the requirement that they correctly reflected the knowledge she once
had.
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