The Written Statement, Refreshed Recollection and Trial Testimony

After a jury convicted Lee A. Arrellano of resisting arrest and assault of a peace officer, he appealed, raising a single issue.  Arellano v. State, 2012 WL 4903044 (Texas Court of Appeals 2012).  He claimed the trial judge “erred in ordering him to produce a written statement he prepared on his computer about the events leading to his arrest.”  Arellano v. State, supra.

The issue seem to have arisen as the result of an exchange that occurred at the beginning of the prosecutor’s cross-examination of Arrellano:

Q. Did you make any written statements about what happened that night after this happened?

A. Just from my own recollection.

Q. You didn't write anything down?

A. I wrote down from my own recollection on my laptop.

Q. Did you review that before you came to testify today?

A. I review it quite frequently.

[Prosecutor]: Okay. Judge, I would like a copy of that pursuant to 615.

THE COURT: Okay.

[Defense Counsel]: I was not aware it existed Your Honor. So I know we don't have a copy here.

THE COURT: Okay. Is there any way to obtain a copy before the end of Mr. Arrellano's cross-examination?

[Defense Counsel]: He would have to go home. And his wife is here so --he would have to go home and get it and bring it back. The only way we can do that would be tomorrow morning, Your Honor. Since we're ten minutes to 4 now.

THE COURT: Okay.

[Prosecutor]: I can proceed now and then depending on time, maybe take a break. But I would like him instructed to bring that tomorrow morning.

THE COURT: Okay. Very well then. So instructed then. Please have Mr. Arrellano make a copy of it and bring it in the morning.

Arellano v. State, supra.

The next morning, Arrellano’s lawyer objected “to the production of the statement” for reasons we’ll get to in a moment.  Arellano v. State, supra.  The prosecutor, of course, disagreed, arguing that it should be produced.  Arellano v. State, supra.

After the trial court reserved its ruling on the production of the statement, the prosecutor asked Arrellano if he brought the statement with him to court. 

Arrellano responded that he brought the statement, but he did not read the statement the prior evening. After the trial court ordered the statement to be produced, the prosecutor asked Arrellano when he last reviewed the statement, and Arrellano responded a week before trial. 

Arrellano also stated that he had reviewed the statement may times over the past four years.

Arellano v. State, supra.

As Wikipedia explains, the United States and other countries have rules of evidence which “govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact [i.e., a judge or a jury] for consideration.” In the Arrellano case, the prosecution argued that the production was required by either or both of two rules of the Texas Rules of Evidence.  Arellano v. State, supra.

One was Texas Rules of Evidence Rule 612, which provides as follows:

If a witness uses a writing to refresh memory for the purpose of testifying, either

(1) while testifying;

(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or

(3) before testifying, in criminal cases;

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. 

(The notes of the Advisory Committee that drafted Federal Rule of Evidence 612, which is very similar to the Texas rule, explain that the

purpose of the phrase “for the purpose of testifying” is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.

The Advisory Committee notes also explain that the “purpose of the rule is  . . . to promote the search of credibility and memory.”)

The other was Rule 615 of the Texas Rules of Evidence, which states that

[a]fter a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

Texas Rule of Evidence 615(a).

Rule 615 also states that “[i]f the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party”, i.e., to the prosecutor in this case.  And Rule 615(f) defines a “statement” of a witness as:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

Arrellano’s first argument was that “Rule 612 is not applicable because he did not use his statement to refresh his memory.”  Arellano v. State, supra. The Court of Appeals, though, noted that

Arrellano testified . . . that he had reviewed the statement numerous times in the four years before trial and as recently as a week before trial. Accordingly, the trial court did not abuse its discretion in concluding that Arrellano used the statement to refresh his memory before testifying.

Arellano v. State, supra.

Alternatively, Arrellano argued that

the admissibility of the statement should be governed by Rule 615 and not Rule 612. Arrellano relies on the doctrine of in pari materia, arguing that the two rules pertain to the same subject matter; therefore, Rule 615, which is the more detailed rule, should control over Rule 612, the more general rule.

Arellano v. State, supra.

As Wikipedia explains, the phrase “in pari material”, when used in the context of parsing legislation and court rules, means that “[w]hen a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.” 

So Arrellano was arguing that in order to understand which rule should properly apply here, the trial judge should have considered the relationship between these two rules and would, had he done this, have found that Rule 615 applied.  The prosecutor argued that this canon of statutory interpretation did not apply here “because Rule 612 and Rule 615 do not have the same purpose and apply in different situations.”  Arellano v. State, supra. 

The Court of Appeals began its analysis of Arrellano’s second argument by noting that

Rule 612 is intended to enable an adverse party to inspect any writing used by a witness to refresh his or her memory for purposes of cross-examining the witness and introducing into evidence those portions of the writing that relate to the testimony of the witness. Texas Rule of Evidence 612. Thus, Rule 612 applies only if a writing is used by a witness to refresh his memory. . . .

The purpose of allowing an adverse party to inspect any writing used by a witness to refresh his or her memory is to test the credibility of the testifying witness or for impeachment. . . .  Similarly, the purpose for requiring the production of a statement under Rule 615 is `for the purpose of impeachment or discovering prior inconsistent statements made by witnesses or possible Brady material. Keith v. State, 916 S.W.2d 602 (Texas Court of Appeals 1996).

Arellano v. State, supra. 

The court also explained that the

key distinction between Rule 612 and Rule 615 is that Rule 612 requires the production of `any writing’ used to refresh a witness's memory, while Rule 615 requires only the production of `statements’ as defined in Rule 615. . . . A writing used to refresh a witness's memory may not meet the definition of `statement’ contained in Rule 615, yet Rule 612 still requires the writing to be produced because of the witness's use of it.

Similarly, a witness may not use a `statement’ to refresh his or her memory before testifying; however, Rule 615 still requires that the statement be produced. See . . . Patterson v. State, 2008 WL 340449 (Texas Court of Appeals 2008) (holding statement not used to refresh a witness's memory was not required to be produced under Rule 612 but was required to be produced under Rule 615). 

Accordingly, although the general purpose for both rules is to provide material which may be used to impeach a witness, the rules are applicable to different types of materials. 

Arellano v. State, supra. 

The Court of Appeals therefore affirmed Arellano’s conviction because it found that

[i]n this case, based on the testimony presented, the trial court could have found Arrellano used the statement he prepared to refresh his memory before testifying at trial; accordingly, the trial court did not abuse its discretion in ordering the statement produced under Rule 612.

Arellano v. State, supra.