United States v. Porter

In United States v. Porter, 986 F.2d 1014 (6th Cir. 1993), the teenage girlfriend of the defendant had given a statement to the FBI relevant to the charges against him. At trial, she recalled the statement but not its contents. Id. at 1016. As to the statement's accuracy, she testified that "she tried to tell the truth in the statement, but she was not sure she had done so" because she was using drugs at that time. Id. at 1017. The trial court admitted her statement as past recollection recorded upon consideration of a number of factors, including that it was consistent and detailed, and it was signed under penalty of perjury and made when the witness feared reprisal from the defendant. Id. On appeal, the Sixth Circuit upheld the admission of the contents of the statement into evidence, commenting that: Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration, as was done by the district court in this case, of factors indicating trustworthiness, or the lack thereof. While Rule 803(5) treats recorded recollection as an exception to the hearsay rule, the hearsay 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. (Id. at 1017.)