Recanted Testimony in Battery Cases

Ever been under a lot of pressure and emotion, so much so that you said something you shouldn’t have said? It happens.

What happens when a couple’s night of drinking turns ugly? Ever known an ugly, mean drunk? They exist, believe me. To see what happens when we bring two such people together, take a look at the equations below:

[alcohol] + [arguing] + [anger] = [arrest]

Or, how about this equally valid equation:

[early morning hours] + [yelling and screaming] = [neighbors calling police] = [arrest]

As our community caretakers, the police are in an awful position, as they can’t leave the drunk couple together, for fear of escalating troubles. Most police departments have a policy of taking someone–anyone–to jail just to separate and cool off the situation. Thus, the police find a reason to arrest either the man, or the woman, and make a domestic violence battery case out of the situation.

However, once the tempers calm down, and the alcohol metabolizes, some folks regret their drunken sworn statements to police.

In the midst of an often emotional, alcohol soaked domestic dispute, cops fight hard to get a “sworn” statement from an alleged victim of domestic violence battery. Once clearheaded, can the sober witness now tell the truth of the evening’s events without fear of perjury or an arrest for filing a false police report? If they do, this is what we call “recantation”.

When an alleged victim of domestic violence decides to “recant”, this can spell trouble for the prosecution. Why? Because the prosecution may be barred from calling the alleged victim as a witness. A recantation may limit the alleged victim to testifying only about the “new story”. Prosecutors are not permitted to call the alleged victim merely to impeach her about what she initially told the police when they know the story has changed. But, the prosecution will attempt to admit the prior statement as a “past recollection recorded”. Such a move is often considered abusive where the state has been put on notice that their victim has recanted (and, that’s why it’s so important for you criminal defense attorneys out there to file a Motion in Limine & Motion to Exclude the victim as a witness, etc. etc.).

As stated in Hernandez v. State, 31 So3d 873 (Fla. 4th DCA 2010),

“Section 90.608(1),…states that ‘any party, including the party calling the witness, may attack the credibility of a witness by…introducing statements of the witness which are inconsistent with the witness’s present testimony.’ However, the supreme court in Morton v. State, 689 So2d 259 (Fla. 1997)…recognized the risk of abuse where a prosecutor calls a witness who has previously given a statement implicating the defendant but who has since repudiated that statement. Bateson v. State, 761 So2d 1165 (Fla. 4th DCA 2000) “Where a prosecutor knows that the witness’ testimony at trial will be favorable to the defendant but, nonetheless, calls the witness for the purpose of impeaching her with her prior statement, the practice may be considered abusive because ‘there is no legitimate forensic purpose in calling a witness solely to impeach her.“” id.

One of the main legal issues surrounding the admissibility of a past statement involves the prosecution’s ability to present testimony as to the accuracy of the original statement they seek to introduce. Imagine a domestic battery case where only the husband and wife are witnesses, and the state seeks to introduce the wife’s initial statement accusing her husband of battery. If the wife will not testify as to the accuracy of her very own statement, who will? Without the wife’s support, does her old statement have enough credibility to be presented to the jury thru the police officer that took the statement? Isn’t it just another inadmissible out of court statement? Sure, the police officer can testify as to who actually wrote the statement, but how can the officer testify as to its accuracy if the officer didn’t personally witness the incident? Our appeals courts in Florida currently disagree on the answer to this question, and the Florida Supreme Court may soon step in to break the tie.

Another problem involves the definition of “recantation”. Is a prior recorded statement permitted to go to the jury when a witness does something other than recants? Say, for example, that the alleged victim of a battery takes the witness stand, but conveniently “forgets” what happened. She doesn’t disagree with her previous statement, she simply doesn’t remember. Is the original story “recanted”? May the original story–now forgotten–be shown to the jury under a technicality known as “past recollection recorded?” For some answers, let’s take a look at the recent case of McNeal v. State, 2013 WL 709567, (Fla. App. 1st DCA 2013).

McNeal was found guilty of felony battery, domestic violence. His girlfriend gave a sworn statement to police the night of the incident. Afterwards, she attempted to have the charges dropped. Of course, her attempts were unsuccessful (if I had a nickel for every time someone said, “oh this case will be dropped, she’s going to deny this happened” Maybe McNeal was believing that urban myth). So, the state proceeds to a jury trial, and they compel the appearance of the girlfriend. At trial, the girlfriend claimed to not remember the incident, nor did she remember writing a statement for police.

The prosecutor sought to admit the girlfriend’s statement as a past recollection recorded, and the judge permitted such. The court reasoned that, even though the girlfriend could not verify the accuracy of her sworn statement, its accuracy could be inferred from the 911 call, the recorded jail calls, and pictures of her injuries. And even though the appeals court upheld the admission of her sworn statement as “harmless”, one judge on the panel disagreed, noting that “the alleged victim’s written statement made at the time of the incident in question was improperly admitted as a past recollection recorded”, finding that only the person who made the statement can testify as to its accuracy, thus most courts have “rejected the concept that the accuracy of the statement at the time it was made may be proven by circumstantial evidence.” Id at 5.

The dissent rightly points out that past recollection recorded cannot be twisted so as “to give the State a vehicle for improperly impeaching its own witness.” Id at 6. As a side note, I think this could have gone better for McNeal had the girlfriend “recanted”….But with a sworn statement already signed, that would have been trouble as well…

And there you have it. Battery cases can be tricky. Historically, our system of justice has relied upon live testimony to a jury. If the testimony is not live, it must be accurate and reliable before being admitted. As you can see, our courts and judges disagree as to who (or what) determines a statement is accurate, and hence, admissible.