In State v. Marcy, 165 Vt. 89, 680 A.2d 76 (Vt. 1996), the Court admitted a witness's statement using this same approach to determine accuracy. The witness testified that she did not remember her husband's assault on her but did remember obtaining a restraining order and being interviewed by police. Id. at 78-9.
She did not, however, testify to the accuracy of her tape-recorded statement.
The Vermont Supreme Court opined that "the language of the rule contemplates a more flexible case-by-case determination of the admissibility of a statement as past recollection recorded, that evaluates the trustworthiness of the prior statement instead of focusing on hypertechnical evidentiary requirements." Id. at 80.
Accordingly, the court found the trial court correctly admitted the taped interview based on a number of factors, including the close proximity in time of the witness's statement to the event, the coherence of her statement, and the consistency between her statement and other testimony. Id. at 79.