## Facts

- Paul W. Hitchener was serving a previously imposed suspended sentence with probation.
- After a domestic dispute on July 24, 1995, Hitchener was charged with multiple new offenses arising from alleged violence against his girlfriend, Cynthia Frates, and damage to property.
- On July 25, 1995, Frates gave the Warwick police a detailed written statement describing Hitchener’s alleged assaultive conduct during the incident.
- Because the new charges would violate the conditions of Hitchener’s probation, the State filed a probation-violation notice and the Superior Court held a violation hearing in September 1995.
- At the hearing, Frates testified but said she could not remember most of what happened on the night of the incident; even after reviewing her written statement, she could recall only some details and continued to claim an inability to remember much of the event.
- Frates acknowledged on the stand that she had given the police statement truthfully and at a time when the events were fresh in her mind, and that it accurately reflected what occurred.
- The hearing justice observed Frates’s hostility and reluctance to testify and admitted the written statement over objection as a recorded recollection under Rhode Island Rule of Evidence 803(5).
- Relying on the statement and the evidence presented, the hearing justice found Hitchener in violation of probation, executed the previously suspended sentence, and ordered a term to serve. Hitchener appealed.

## Issues

1. Whether the complaining witness’s written police statement was admissible at a probation-violation hearing as a recorded recollection under R.I. R. Evid. 803(5) when the witness had only partial memory at the hearing but confirmed the statement was truthful and made when the events were fresh.
2. Whether the evidence admitted at the hearing was sufficient to satisfy the hearing justice, by the reasonable-satisfaction standard, that Hitchener violated the terms of his probation.

## Decision

- The Rhode Island Supreme Court affirmed the Superior Court’s adjudication of probation violation and denied Hitchener’s appeal.
- The court held the statement was hearsay but fell within the recorded-recollection exception in Rule 803(5) because Frates once had knowledge, later had insufficient recollection to testify fully and accurately, made the statement when the matter was fresh, and confirmed its accuracy.
- The court rejected the argument that Rule 803(5) requires total memory loss; partial recollection does not bar admission so long as the witness cannot testify fully and accurately.
- The court concluded the hearing justice had competent evidence to be reasonably satisfied that Hitchener committed new assaultive conduct and therefore violated probation.

## Legal Principles

- Under R.I. R. Evid. 803(5), a “recorded recollection” may be used as substantive evidence when: (1) the witness once had knowledge of the matter; (2) the witness now has insufficient recollection to testify fully and accurately; (3) the record was made or adopted when the matter was fresh in memory; and (4) the record correctly reflects the witness’s knowledge at that time.
- Rule 803(5) does not require a witness to have no memory at all; it is enough that the witness cannot testify fully and accurately without the prior record, even if the witness can recall some fragments.
- A proper foundation for recorded recollection can be established when the witness acknowledges making or adopting the statement at a time when the events were fresh and confirms that it was truthful and accurate when made.
- In a probation-violation proceeding, the State is not required to prove a violation beyond a reasonable doubt; it must present evidence that reasonably satisfies the hearing justice that the defendant violated probation conditions.
- On review, the Supreme Court will not disturb a probation-violation finding when the record contains competent evidence supporting the hearing justice’s conclusion under the reasonable-satisfaction standard.

## Conclusion

State v. Hitchener held that a victim’s detailed police statement made the day after an alleged domestic assault was admissible as a recorded recollection under Rule 803(5) when the victim later claimed she could not remember most of the incident but affirmed the statement’s truthfulness and accuracy at the time it was made; applying the reasonable-satisfaction standard for probation violations, the court affirmed the violation finding and resulting execution of sentence.


State v. Hitchener, 684 A.2d 688 (1996)