dissenting. It seems to this member of the court that a can of evidential worms is being opened and foisted into the soil of onr trial procedure in Ohio with this innovative ruling adopting the precept of past recollection recorded into the criminal law of Ohio under the facts in this case. And, given time, they will emerge from that very soil in different fact situations and present problems of constitutional dimension to irle this court.
In the instant case, the written statement seems to me to be objectionable for at least four reasons:
(1) the statement was not made in the presence of the defendant;
(2) admitting the written paper as evidence results in it going to the deliberation room with the jury and a patent danger is that it will be given undue weight by the jury;
(3) it places special emphasis on the facts recorded in the statement as against other facts testified to and contrary to the written statement; the written statement, likewise, gains an excessive value which ordinary testimony unreduced to available written form cannot have;
(4) finally, under the traditional formulation of the rule, before a past recollection recorded could be received in evidence the witness who made it must testify that he lacks present memory of the events and therefore is unable to testify concerning them.
Here, the witness, Carol Tackett, testified for the state. She was the girlfriend of the defendant. She did not say, unambiguously, that she had no present memory of the events recorded in her statement. The following excerpts constitute her entire testimony bearing on recollection preceding the admission of her written statement:
“Q. Did you have any other conversation with him?
“A. Well, he said something about somebody being shot at that time and I left the show right after that with my sister and Linda.
It* # *
“Q. Now then, can you tell us what the words were that Randy used concerning somebody being shot?
*13“A. I can’t remember exactly what they were, just that it was something about that.”
Then the written statement was identified and introduced in evidence.
Certainly, in that state of the proof, the witness did not expressly say that any present memory of the facts recorded was absent or that she had no independent recollection of the event. More importantly, there was no effort made by the prosecutor to refresh her recollection from her prior written statement as to the facts therein. She was not asked if the written statement revived her memory.3
The admission of the statement under the facts in this criminal case was, in my view, prejudicially erroneous to the substantial rights of defendant, and I would reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings.
Beowk, J., concurs in the foregoing dissenting opinion.
Russell v. Hudson River Rd. Co. (1858), 17 N. Y. 134, 140. It is “an indispensable preliminary to the introduction” of such memoranda as evidence “that the witness is unable with the aid of the memorandum to speak from [present] memory as to the facts.”
Pickering v. Peskind (1930), 43 Ohio App. 401, 413. “Memorandum used by witness to refresh recollection held admissible as auxiliary to testimony, where witness had no independent recollection of matter, but had to depend on memorandum made at time.” The witness “* * * cannot testify to an existing awakened knowledge of the fact independent of the memorandum * *