In many driving under the influence (DUI) cases in Florida, the arresting officer has difficulty remembering how the subject did on field sobriety exercises. These problems are most pervasive when there is no video recording of the roadside investigation.

In those cases, the prosecutor might ask the officer if reviewing his report would refresh the officer’s independent recollection. If so, the officer is permitted to review his report, and if it refreshes his independent recollection, the officer is allowed to testify about his refreshed independent recollection.

Sometimes reviewing the report doesn’t change the fact that the officer can’t remember, but the officer pretends to remember after looking at the report. But what if the officer is honest about the fact that even after reviewing all of the available information, there is no way to refresh his independent recollection?

The officer might say: “I forgot, and nothing in this report would help me remember.”

This issue is more common in misdemeanor cases because the prosecutors are less experienced, and the officers are unprepared (and more honest). When the officer forgets, can the prosecutor ask the officer to read portions of the police report aloud to the jury as a past recollection recorded under Section 90.803(5)?

The answer is “no.” This article explains why.

What is a Past Recollection Recorded?

When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. Section 90.803(5) provides:

“(5) RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.

A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.”

To lay a proper foundation, the prosecutor might ask the witness the following questions:

• does the officer now have insufficient recollection to enable the officer to testify fully and accurately?
• was a “memorandum or record” created concerning the officer’s observations?
• did the officer once have knowledge about those observations?
• was the memorandum or record report made by the officer when the matter was fresh in the officer’s memory?
• does the memorandum or record reflects that knowledge correctly?

The Police Report isn’t a Qualifying Memorandum or Record

Even assuming the prosecutor attempts to lay the proper predicate, the defense attorney should argue that the past recollection recorded exception to the hearsay rule under Section 90.803(5) does not apply to the reading of a police report because the report would not qualify as a “memorandum or record.”

The term “report” is not included in Section 90.803(5). The term “report” does appear in Section 90.803(8), which provides the public records or reports exception expressly excludes reports made in criminal cases.

Section 90.803(8) provides:

“(8) PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.”

This provision shows that the legislature distinguished between “records” and “reports.” This distinction supports the position that police reports are not included within the term “records” as contemplated by the hearsay exceptions. Although that exclusion for police reports (created by the officer concerning his observations in a criminal case) is not explicitly included in subsection (5), it is required by Florida law for several reasons.

The court in State v. Donner, 11 Fla. L. Weekly Supp. 976b (Fla. 17th Cir. Ct. 2004), explained it this way:

“Under this section [Section 90.803(8) for public records and reports], the [officer’s] report would not have been admissible since it was a police report, and such report are excluded from the public records hearsay exception.

The Florida Supreme Court clearly stated this interpretation in Burgess v. State, where it would not allow admission of a police report since it was hearsay and therefore inadmissible in an adversarial criminal proceeding. 831 So.2d 137, 141 (Fla. 2002).

The court also cited Professor Ehrhardt, who found that this limitation is “based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observations by public officials in other cases because of adversarial nature of the confrontation between the police and the defendant.” Charles Ehrhardt, Florida Evidence 786 (2003 Ed.).

The court did note that while some statutes provide for the use of a police report in trial proceedings; this applies only when the legislature has expressly permitted such use. Burgess, 831 So.2d at 141.

Since no such statute exists which would have expressly allowed [the officer’s] arrest report to be introduced, it therefore was inadmissible pursuant to Section 90.803(8).”

Additionally, in Burgess v. State, 831 So.2d 137 (Fla. 2002), the Florida Supreme Court found:

“[T]he information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding. See Bolin v. State, 736 So. 2d 1160, 1167 (Fla.1999).

Nor does the information contained in the report in question fall under any recognized exception to the hearsay rule. See §§ 90.801-805, Fla. Stat. (1999).”

Id. 

The Defense Attorney’s Objections When the Officer Can’t Remember

So the correct objections for the criminal defense attorney to raise in these situations are as follows:

• the officer has a “lack of personal knowledge” since the officer is relying on hearsay statements instead of his present recollection as he sits on the stand;
• the words in the police report are “hearsay” and do not fall under the hearsay exception contained in Section 90.803(5) (for the reasons explained above) or any other hearsay exception;
• the statements are also “irrelevant ” if admitted for some purpose other than the truth of the matter asserted; and
• the testimony violates the “confrontation clause” of the Sixth Amendment of the U.S. Constitution and Crawford v. Washington, 541 U.S. 36 (2004), since the defense can’t confront the witness at trial about facts they can’t remember.

These issues have come up in several recent trials. In one of those trials, the judge was so frustrated with the prosecutor’s lack of preparation and the officer’s inability to remember the details that the court was contemplating just letting the prosecutor have the officer read the report to the jury.

The ruling changed after the court listened to the arguments explained in this article outside the jury’s presence. The court then told the jury that the officer is not allowed to read from a police report when he can’t remember what happened.

Nothing is more devastating to the defense than watching the officer read from a report. Jurors tend to believe that police reports are accurate. Keeping that evidence out increases the likelihood that the jury finds reasonable doubt. If the officer can’t remember something, that information should not be given to the jury.

When the Arresting Officer Can’t Remember the Basis for the Stop

Of course, if the stopping officer doesn’t remember the basis for the stop, you should file a motion to suppress, which the court would be required to grant for the reasons discussed in the K.E.A. and Carter case listed below.

In K.E.A. v. State, 802 So.2d 410 (3rd DCA 2001), an officer was incompetent to testify to refreshed recollection because upon review of his report and body cam after he stated that the items would not refresh his present recollection, and he had no independent recollection of the stop.

In Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013), the Fifth District Court of Appeal held that the officer had no competent, substantial evidence to support a finding of reasonable suspicion for a traffic stop because the officer admitted that he could not independently recall observing the traffic infraction.

Because this issue comes up so often, I decided to explain it in this article.