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
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!