Thabit Gault 1-15 SCt Sullivan
(Judge Randall Johnson, Grant Superior Court – affd error harmless)
REFRESHING RECOLLECTION: Under IRE 612 (a) trial court erroneously denied defense (i.e. adverse party) access to police report during cross of officer who used it to refresh memory, but the error was harmless.
FACTS: This was a jury trial conviction for possession of cocaine with intent to deliver (almost 500 grams of powder) cocaine (fA). Before trial the arresting officer studied his police report to refresh his memory about the arrest. At TRIAL, while on CROSS, the officer said that looking at the report again would refresh his recollection. The prosecutor handed the report to the defense attorney, who handed it to the officer. Defense counsel then asked to view the report. The trial court denied, ruling the defense was not the adverse party, and the report was not discoverable.
DISCUSSION: The defendant was an adverse party for purposes of IRE 612(a) and his counsel should have been permitted to review, at the least, the relevant portions of the report used to refresh the officer’s recollection on the stand. NOTE: Under subsection (c) it’s important to request the trial court make an in camera review of the document. Also request a copy be sealed for the Court of Appeals.
612 (a) deals with a document used to refresh recollection during testimony. Under this subsection the adverse party must have access to the document.
612 (b) concerns using the documents to refresh prior to testimony. Here the adverse party may gain access to the document if the court determines it is in the interest of justice.
The definition of “adverse party” is critical to any IRE 612 analysis, and outcome determinative. Unfortunately, there is no definition under the rules. (The term appears in only one other place - Rule 106.)
Where attention is focused, manipulates the outcome of the rule. There are several points to examine.
1. Whoever hands the witness the document is the proponent of it. The other side is the opponent.
2. Who really controls the document?
3. Generally, what parties oppose each other?
***4. Whose interests are harmed by the refreshed memory testimony?
The trial court and court of appeals focused on number one and determined the defense was the proponent of the document, since he was crossing, and supposedly in control of the witness. Because the defense handed the witness the document, he was not adverse to it, and could not force the state to produce it under rule 612 (a). The Supreme Court did not appreciate this hyper-technical reading of the rule. It was obvious who really controlled the document and it seemed silly to say that at the moment the defense handed the document to the officer the State became adverse to him. A trial, and cross in particular, is designed to seek out the truth. Once a document is used to refresh memory, the only way to test the believability of the memory is by further questioning concerning the document. That can’t happen if the document is hid from the party harmed by the refreshed memory. It doesn’t matter who handed the document over, who called the witness, or who stood in general opposition party-wise:
IRE 612 (a) requires that if a document is used to refresh a witness’s memory while testifying, the party whose interests could be harmed by the testimony must have access to the document.
See the opinion for a more thorough analysis of why the 1-3 approaches won’t work. Suffice it to say that in the civil context with joinder, cross-pleading etc, it is sometimes hard to figure out who is in opposition, at any given point. Further, in any case, a judge may engage in questioning a witness. Under that circumstance, any adverse party determination would be problematic.
In creating this 612(a) patch, the Supreme Court does not re-hash the concept of work-product. That is established in State ex rel Keaton v. Circuit Court of Rush County 475 N.E.2d 1146, 1148 (Ind. 1985). Basically, the prosecutor waived any work-product privilege when he handed the report to the defense. Put another way, the defense isn’t a mule for the State with blinders on his eyes. Once you hand it over, it’s revealed and you can’t put it back in the box. The Supreme Court was also suspicious of the whole sale work product claim for the complete police report which is a government document in a criminal case. At any rate, an in camera review by the trial judge and sealing the report for appellate review should have combed through any work-product tangle.