Baker v. State
35 Md.App. 593, 371 A.2d 699 (1977)

  • Martin was robbed and beaten up.  He was picked up by a police officer, Bolton, who drove him to the hospital.
  • On the way to the hospital, Bolton took Martin to see another officer, Hucke, who was holding Baker and asked Martin if Baker was the person who beat him.
    • Later, Martin was taken to the hospital and died.
  • Baker was arrested on suspicion of robbery and murder.
  • At trial, Baker attempted to introduce evidence that Martin failed to identify Baker as his attacker.  She called Bolton as a witness.  Bolton testified that he didn’t remember what Martin had said.
  • In an attempt to refresh Bolton’s memory, Baker asked Bolton to read the police report filed by Hucke.
    • The prosecution objected on the grounds that the out-of-court statements in the police report were hearsay.
    • Baker argued that the evidence was admissible as an exception to hearsay because it was a recorded recollection (See FRE 803(5)).
  • The Trial Judge refused to allow Bolton to read the police report to refresh his memory.
    • The Trial Judge found that since Bolton had not written the report, it did not contain his memories.
  • The Trial Court found Baker guilty.  She appealed.
  • The Appellate Court reversed and remanded for a new trial.
    • The Appellate Court found that the prosecution could not offer the police report into evidence as a record of past recollection for Bolton without showing that Bolton wrote the report or that he read it at the time it was written.
      • The Appellate Court found that when a party seeks to introduce a record of past recollection, they must establish:
        • That the record was made by or adopted by the witness at the time when the witness did have a recollection of the event.
        • That the witness can presently vouch for the fact that when the record was made or adopted, he knew that it was accurate.
    • However, the Appellate Court found that under the present recollection revived doctrine, the police report could be given to Bolton off the record in an attempt to job his memory.  The report would not be entered into evidence, so the only evidence would be Bolton’s testimony about what he remembered.
      • Under the doctrine, the witness must be reminded that they can only use the report to refresh their own memory, they can’t adopt the report as their testimony.
      • Because the report isn’t entered into evidence and is never seen by the jury, the contents of the report do not have to be admissible, relevant, or even authenticated!
        • See FRE 612.