IN A CRIMINAL DAMAGE TO PROPERTY CASE, CAN THE PROSECUTING ATTORNEY REFRESH THE WITNESS’S MEMORY BY SHOWING THEM A POLICE REPORT?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Kelly, 874 P.2d 1208 (Kan. Ct. App. 1994).
This case addresses the following issue:
In a criminal damage to property case, can the prosecuting attorney refresh the witness’s memory by showing them a police report?
This case explored the issue of whether a prosecuting attorney could use a police report containing statements made by the witness in a criminal damage to property case to refresh the witness’s memory. In exploring this case, the court held that as long as the witness testified from an independent recollection of the events at issue after the police report was used to refresh the witness’s memory, the prosecuting attorney was allowed to use the police report. Id. at 1211.
In this case, the defendant was charged with misdemeanor damage to property, felony theft, and misdemeanor theft. Id. at 1209-10. These charges arose from burglarizing a Lawrence residence on January 8, 1992. Id at 1210. The homeowner testified he returned to his home and discovered evidence of a burglary. Id. The defendant knocked out a window in the back door, unlocked the door, and entered the residence. Id. Additionally, the homeowner testified that wedding rings, gold necklaces, and other jewelry were taken from the home. Id. After leaving the home, the defendant went to a local nightclub. Id. An employee at the nightclub testified that the defendant came into the nightclub on January 8 and immediately started to hand out jewelry. Id. Furthermore, the employee testified that the defendant appeared nervous when a police officer entered the nightclub and asked her if she could help him get to Emporia because he had just robbed a house. Id. At trial, the prosecuting attorney asked the employee whether she remembered any specific statements by the defendant, but she could not remember. Id. The prosecutor then asked if it would refresh her memory to look at a police report prepared by the officer who took her statement on January 9. Id. The court allowed this refresh and after examining the police report, the employee remembered all of the details and testified further that the defendant told her he could steal more jewelry for her and gave her a piece of jewelry from around his neck. Id. After trial, the defendant was convicted of all charges. Id.
At appeal, the defendant argued that it was improper to allow the witness to refresh her memory using any memoranda (in this case a police report) which was not prepared by the witness. Id. at 1211. Furthermore, the defendant stated that the use of a document prepared by another could lead to false testimony. Id. at 1212. Additionally, the defendant claimed that the use of a police report to refresh the recollection of a witness who was not a police officer was problematic because the report would have been written to assist police and the witness may feel compelled to adopt the police report’s version. Id.
In response to the defendant’s argument, the court held that whether the trial court should have allowed a witness to review a document to refresh his or her memory did not depend solely upon whom created document. Id. at 1211. According to the court, as long as the witness testified from an independent recollection of the events at issue after the document was used to refresh the witness’s memory, it did not matter who created the document. Id. Further, the court noted that it was the witness’s testimony, not the document, which was evidence at issue. Id.