Trial Division

State of Pohnpei,

 Danny Hanakahi, a.k.a. Danny Porter,

PTC No. 513-97


     Before this Court are two motions relating to this case for consideration. First, motion by the State to Reconsider Admission of State's evidence filed on the 26th day of January 1998. Second, defendant's motion in Opposition of State's motion to Reconsider Admission of State's evidence filed on the 5th of February 1998.

     Primarily, the motions address the admissibility in evidence of two extra-judicial statements which the State's witness, Churasi Shirai, had previously given to police officers on June 15 and 16, 1997, which appeared to be inconsistent with witness' testimony in Court. The motions were brought pursuant to Rule 803(5) of the Pohnpei Rules of Evidence. Rule 803(5), which is an exception to the Hearsay Rule, reads:

Recorded Recollection

            A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

This rule is identical to Rule 803(5) of the United States Federal Rules of Evidence on the same subject. Parties in this case concede the admissibility of extra-judicial statements of a witness under Rule 803(5) if certain conditions are met, namely:

      1. the witness must have first-hand knowledge of the event;

      2. the statement must have been made by, or at the direction of, or adopted by the witness;

      3. the written statement must be an original memorandum made at or near the time of the event in question while the witness had a clear and accurate memory of it;

      4. the witness must lack a "sufficient" present recollection of the event; and

     5. the witness must vouch for the accuracy of the written statement.

     While the plaintiff State contends that these conditions have been met with reference to its witness, the defendant maintains otherwise, asserting that the witness' statements in question are hearsay and cannot be admitted under Rule 803(5). The defendant asserts they are hearsay because they were false, and that the witness could not have first-hand knowledge of the morning of June 15, 1997, because he was asleep and that witness did not see nor hear anything on that morning after leaving 1627 parking lot; that he did not direct nor adopt these statements because the police detectives directed his statements; and therefore, witness has a "sufficient" present recollection of the event. According to the defendant these statements, being hearsay, cannot be admitted under Rule 803(5). Besides, the statements are tainted because they were made "under threat from police detectives that he [witness] would be put into jail if he did not give a statement." (Emphasis added).

     I heard witness and observed his demeanor in Court during his testimony. I do not believe that he was asleep and did not see nor hear anything on the morning of June 15, 1997, after leaving the 1627 parking lot. I am satisfied that he had first-hand knowledge of the events of that is morning. Further, the contention by the defendant that the statements were not directed nor adopted by the witness is without merit because the witness signed these statements thereby vouching for the accuracy thereof. Even though he did not write the statements, by signing and swearing to them he adopted them. United States v. Williams, 571 F 2d 344.

     As to the alleged threats in the procurement of the statements, I find nothing to establish that the alleged threats induced the statements at issue. The defendant's own words that "he [witness] made a statement under threat from police detectives that he would be put in jail if he did not give a statement" do not lead me to the conclusion that the substance of the statement was procured by threats. It is a statement they wanted from him and he was at liberty to say whatever he wanted to say in the statement which the police "threatened" him to make. I am therefore of the opinion that the substance of the statements is not vitiated by any threats. I therefore conclude that the statements are the voluntary statements of the witness.

     I hold accordingly that the conditions for admission of extra-judicial statements under Rule 803(5) are met in this case. The statements made by State's witness Churasi Shirai are therefore admissible as an exception to the Hearsay Rule having regard to the circumstances of this case. It is evident from the extra-judicial statements and the witness' testimony in Court that the witness was inconsistent. The general rule is that when a witness has changed sides and altered his story or forgets or claims to forget some fact, his previous statement may be received for impeachment purposes. As to the effect that shall be given to the statement in evidence, the generally accepted doctrine is that the statement is not usable as substantive evidence of the facts stated therein. McCormick on Evidence, Section 39, page 73. See United States v. Rainwater, 283 F. 2d 386 (1960).

     It is also generally recognized both in civil and in criminal cases that a party who, in good faith, has called a witness in his behalf and is surprised by his adverse testimony, may, in the Court's discretion be allowed to draw from the witness in the manner of a cross-examination, or after due preliminary inquiry to show by others, that the witness has previously made statements materially at variance with his testimony. Thereby, the party producing the turn-coat witness is allowed to explain his own plight and to nullify or neutralize the unanticipated repudiation of his position. Ellis v. United States, 138 F. 2d 612. A prior inconsistent statement may be used in the process to refresh the memory of the witness who has made that statement. The second sentence of Rule 803(5) clearly states that if admitted, the memorandum or record [statement] may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. In this case, the proponent of the memorandum [statements] is the State, therefore, its admission as an exhibit in the case is excluded by this second sentence. United States v. Arlt, 567 F 2d 1295 (1978). The statements of witness are accordingly admissible in evidence and may be read into evidence.

     It is accordingly ruled as follows:

1. the extra-judicial statements made by State's witness, Churasi Shirai, are not hearsay. They come within Rule 803(5) of the Pohnpei Rules of Evidence as an exception to the Hearsay Rule, and are therefore admissible and may be read in evidence.

2. the second sentence of Rule 803(5) precludes the recorded memorandum as an exhibit of the proponent of the memorandum. Therefore, the statements of State's witness, Churasi Shirai, may not be admitted as exhibits in this case.

State's motion granted in part and denied in part.

February 19, 1998
                                         Nelson Joseph     
                                         Associate Justice

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