Defense Digest

Imagine a case where "the smoking gun" can be found in an investigator's summary of a witness's recorded statement, but the audio recording of the statement was lost or destroyed. Perhaps "the smoking gun" is contained in a police officer's narrative summary of the witness's statement, but the witness's signed written statement has been lost or destroyed. Can an investigator's written summary be admitted into evidence? Can the police officer testify as to a witness's narrative statements under the present sense or excited utterance exceptions to the hearsay rule?

The Pennsylvania Superior Court addressed these issues in Croyle v. Smith, 918 A.2d 142 (Pa. Super. 2007). The court held that:

1.  An investigator's written summary of a witness's recorded statement is inadmissible as evidence of a prior inconsistent statement, even when the opposing party lost or destroyed the recorded statement;

2.  An investigator's written summary of a witness's recorded statement is inadmissible as evidence under the prior recorded recollection exception to the hearsay rule, even when the recording itself would have been admissible, but for the opposing party losing or destroying it;

3.  A police officer cannot testify to the content of a narrative statement made to the officer by a witness under either the present sense impression or the excited utterance exceptions to the hearsay rule.

On August 20, 2002, Billie Croyle was riding his motorcycle ahead of his co-worker James Bickle's motorcycle, both traveling southbound on Route 64. Ray Smith was driving a tractor trailer northbound on Route 64. As Smith attempted to make a left turn onto Route 26, Croyle crashed his motorcycle into the back of Smith's tractor trailer.

Croyle filed suit seeking recovery for his broken leg, as well as other injuries caused by the accident. At trial, Croyle and Bickle testified that Croyle was approximately 200 feet from the point of impact, while Smith testified that Croyle was more than 400 feet. A disinterested witness, Thomas Dunbar, who was driving behind Smith, and who witnessed the collision and the positions of the vehicles, provided testimony which supported Smith's position.

Croyle wanted to impeach Dunbar's testimony by introducing prior inconsistent statements by Dunbar. Croyle first attempted to introduce a summary of a recorded statement given by Dunbar to an investigator from Smith's insurance company. The recording was lost at the time of trial. Croyle then attempted to question a police officer with regard to the content of a narrative statement given to the officer at the scene of the accident. The trial court did not admit the investigator's summary or Dunbar's statements to the police officer into evidence. The jury found Croyle 53 percent negligent and Smith 47 percent negligent.

On appeal, Croyle argued that the trial court erred in: (1) not admitting the investigator's written summary into evidence as extrinsic evidence of a prior inconsistent statement under Rule 613 of the Pennsylvania Rules of Evidence; (2) not admitting the investigator's written summary into evidence as substantive evidence under Rule 803.1 of the Pennsylvania Rules of Evidence; and (3) not permitting the police officer to testify as to the content of Dunbar's statements under the present sense impression and excited utterance exceptions to the hearsay rule.

A party can impeach a witness by introducing evidence that the witness made one or more statements inconsistent with his or her trial testimony. Under Pa. R. Evid. 613, extrinsic evidence of a prior inconsistent statement by a witness is admissible only if the statement is shown to the witness, the witness is given the opportunity to explain or deny the making of the statement, and the opposing party is given the opportunity to question the witness.

To impeach a witness under Rule 613, the statement must have been actually made or adopted by the witness. The Superior Court in McManamon v, Washko, 906 A.2d 1259 (Pa. Super. 2006) held that a summary of a witness's statement cannot be used for impeachment absent adoption of the statement by the witness.

The Superior Court in Croyle affirmed the trial court's ruling that the investigator's summary of Dunbar's statement was inadmissible as Dunbar never adopted the summary. Even though Dunbar stated that the summary indicated that he saw two motorcycles, and that he believed the summary was accurate, he maintained at his deposition that he only saw one motorcycle. This was not enough to show adoption of a statement for Rule 613 purposes.

Regarding the second argument, Croyle contended that the investigator's summary should be admitted because, but for Smith losing the audio recording, Croyle would satisfy all the elements of Pa. R. Evid. 803.1, the recorded recollection hearsay exception. Rule 803.1 provides that a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection, is not excluded by the hearsay rule if it is shown that the memorandum or record was made or adopted by the witness and the witness is subject to cross examination.

The court initially pointed out that Rule 803.1, which requires that the witness lack a present recollection of the event, did not apply as Dunbar had a present recollection of the accident. However, Croyle contended that Rule 803.1 would have been satisfied if Smith had not lost the recording. Croyle's attempt at legal gymnastics failed as the court stated that Croyle provided no case law to support his contention that a summary of a recording should be admitted as substantive evidence if the recording itself was lost.

In his final argument, Croyle attempted to admit Dunbar's statements to a police officer given approximately ten minutes after the accident under either the excited utterance or present sense impression exception to the hearsay rule. Pa. R. Evid. 803(2) states that an excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by such event. For a statement to be an excited utterance: (1) the declarant must have witnessed an event so startling, and so close in point of time, as to render the thought process inoperable; and (2) the declarations were a spontaneous reaction to such event.

Pa. R. Evid. 803(1) provides that a present sense impression is a statement describing an event made while the declarant is perceiving the event, or immediately thereafter. The trustworthiness of the present sense impression depends on the timing of the statement. That is, the declaration must be made at the time of the event, or so shortly thereafter, that it is unlikely that the declarant had the opportunity to form the purpose of misstating the observation.

The court held that Dunbar's statements to the officer did not constitute an excited utterance or present sense impression and were, therefore, inadmissible. Pertaining to the excited utterance, Dunbar had spoken to other people prior to making the statement, the statement was given as a response to a question, and the statement was given in narrative form, not a single reaction to the accident. The court held that these factors, taken as a whole, demonstrated that Dunbar was not "under the stress of excitement" when giving his statements to the police officer. Additionally, the court held that the statements were not a present sense impression as Dunbar waited for over ten minutes to give such statements.

The Superior Court's ruling in Coyle suggests that an investigator's summary of a witness's statement will not be admitted into evidence. Furthermore, a police officer cannot testify at trial as to a witness's narrative statements made at the scene of an accident. Therefore, if a "smoking gun" is found in a summary of a witness's statement, make sure to keep a recording or a signed written statement so the information can be shared with the jury.

*Justin is an associate in our Philadelphia, Pennsylvania, office. He can be contacted at (215) 575-2871 or jworavetz@mdwcg.com.