Shannon v. Koehler - Northern District of Iowa

“probably” reflected what she believed to have happened, but she was still skeptical.
When considered in light of all of her responses, her answers on re-direct are even less
convincing. Even given the indication of some consistency between her two recorded
statements, in light of Navrkal’s entire deposition, I cannot say that her voluntary witness
statement or her taped statement accurately reflected her knowledge of events at the time.
Additionally, when other courts have determined that statements made while the
declarant was intoxicated were recorded recollections, the declarant has testified at trial.
See Edwards, 539 F.2d at 692; Porter, 986 F.2d at 1017; cf. Parker, 327 F.3d at 215.
As the Sixth Circuit Court of Appeals pointed out in Porter, the fact that the declarant
testified was an important safeguard for reliability. Porter, 986 F.2d at 1017. Here, the
defendants state that Navkral is not available for trial. Consequently, the jury in this case
will not be able to evaluate her credibility first hand and compare her testimony at trial
with her recorded recollections. Thus, yet another assurance of the reliability of Navrkal’s
recorded statements is missing in this case. All told, the “hallmark . . . ‘guarantee of
trustworthiness’” of hearsay exceptions is absent here. See Brunsting, 601 F.3d at 817
(quoting Miller, 754 F.2d at 510).
Therefore, Navrkal’s voluntary witness statement and taped statement are not
admissible as recorded recollections. To the extent the Sioux City Police Department
incident reports or other exhibits contain these statements, the defendants must redact
them. Additionally, other witnesses may not refer, directly or indirectly, to these
statements. If Navrkal becomes available to testify at trial, the defendants may request that
I revisit this issue. 20 Also, if she is available to testify, any prior inconsistent statements
20 I note, though, that even if the statements qualified as recorded recollections, the
defendants could only read the statements into evidence and could not admit them as
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