## Facts

- G.J.’s house was broken into, and G.J. briefly observed one of the intruders during the incident.
- During the intrusion, G.J. identified one of the perpetrators as Shane Stone.
- Police later interviewed G.J., and the interview was audio-recorded; in that recorded interview, G.J. identified Stone as the perpetrator.
- A few days after the break-in, G.J. again identified the perpetrator as Stone from a photo lineup.
- At Stone’s trial, G.J. testified about the break-in but could not identify Stone in the courtroom.
- Although G.J. remembered some parts of the incident, he had difficulty remembering other details, including details about what the perpetrator looked like.
- The prosecution offered the audio recording of G.J.’s police interview to prove G.J.’s prior identification of Stone.
- Stone objected, arguing that G.J.’s memory was adequate so Minnesota Rule of Evidence 803(5) (recorded recollection) did not apply and that G.J. did not adopt the recorded statement as accurate.
- The trial court admitted the recording over objection.
- Stone was convicted and appealed the admission of the audio recording.

## Issues

1. Did the trial court abuse its discretion by admitting the audio-recorded police interview as a recorded recollection under Minnesota Rule of Evidence 803(5) when the witness had partial memory at trial?
2. Was there a sufficient showing that the witness made or adopted the recorded statement as accurately reflecting his knowledge at the time it was recorded, as required by Rule 803(5)?

## Decision

- The appellate court affirmed Stone’s conviction.
- The court held that the trial court did not abuse its discretion by admitting the audio recording under Minnesota Rule of Evidence 803(5).
- The court rejected Stone’s argument that Rule 803(5) was unavailable merely because the witness could remember some aspects of the event, concluding the rule applies when the witness cannot testify fully and accurately from present memory about the matters recorded.
- The court also rejected Stone’s argument that the recording lacked the required “made or adopted” foundation, concluding the Rule 803(5) foundation was adequately established on this record.

## Legal Principles

- A recorded recollection is admissible under Minn. R. Evid. 803(5) when: (a) the witness once had knowledge about the matter, (b) the witness now has insufficient recollection to testify fully and accurately, (c) the record was made or adopted by the witness when the matter was fresh in the witness’s memory, and (d) the record accurately reflects the witness’s knowledge.
- “Insufficient recollection” for Rule 803(5) does not require total memory loss; it is enough that the witness cannot provide full and accurate testimony at trial about the information contained in the record.
- A record may satisfy the “made or adopted” requirement when the witness made the statement in the recording (or otherwise assented to it) and the foundation shows it was intended to be an accurate account at the time it was created.
- Admission of evidence under Rule 803(5) is reviewed for abuse of discretion; the question on appeal is whether the trial court acted within the bounds of the rule’s foundational requirements.

## Conclusion

State v. Stone affirmed the admission of an audio-recorded police interview as a recorded recollection where the victim could not identify the defendant in court and could not recall key descriptive details at trial, and where the foundation was sufficient to show the recording reflected the victim’s knowledge at the time it was made.


State v. Stone, 767 N.W.2d 735 (2009)