This problem is based on United States v. Shoupe, 548 F.2d 636 (6th Cir., 1977). You may find it useful to read Shoupe. But if you decide to read the opinion (and I encourage you to do so), please do NOT assume that the Sixth Circuit "got it right." Moreover, keep in mind some of the questions I have asked here were not addressed in Shoupe.

An FBI agent -- Clara Cleary -- interviews Harry Hall. As she does so, she takes handwritten notes of the interview. In the interview Harry Hall admits taking part in the robbery and he states that the eventual defendant -- Sharon Shoupe -- did so too. Clara Cleary later -- about two weeks later -- sits down next to her trusty old typewriter and, with her written notes of the interview with Hall in front of her, she transcribes her handwritten notes into a typewritten memo. In accordance with the usual practice at the FBI, she then destroys her handwritten notes. Several months later Shoupe is indicted for the crime of robbery and several months after that Shoupe is brought to trial.

At the trial the prosecutor puts on Harry Hall, expecting him to implicate Sharon Shoupe in the robbery. Harry, however, claims that he cannot recall anything about any robbery and certainly not anything about a robbery that Shoupe supposedly took part in.

The prosecutor then returns to the prosecution table and picks up a piece of paper. It is Agent Cleary's memorandum. Holding it in her hand, she asks Hall a series of questions (each objected to) such as the following:

Q. Didn't you have an interview with Agent Cleary on June 1, 1995?

Defense: Objection.

Court: Overruled.

A. I don't remember.

 

Q. Didn't you discuss with Cleary a robbery?

Defense: Objection.

Court: Overruled.

A. I don't remember.

 

Q. Didn't you tell her that you had taken part in a robbery at [the pertinent time and place]?

Defense: Objection.

Court: Overruled.

A. I don't remember.

 

Q. Didn't you tell her that Shoupe had taken part in the robbery with you.

Defense: Objection.

Court: Overruled.

A. I don't remember.

In the case on which this problem is based Shoupe was convicted. But Shoupe's conviction was reversed on appeal. The basis for the reversal was the sort of questioning and evidence that I have just described.

1. In our hypothetical case (this problem) were the prosecutor's questions improper because they were leading? See FRE 611.

2. The prosecutor argued that she was trying to refresh the recollection of Hall. Is she allowed to refresh Hall's recollection? Did she have to show Hall the memo if she wished to try to refresh Hall's recollection? Could she have shown Hall the memo in an attempt to refresh his recollection?

•Do you think that Hall's memory really had failed him? Or do you think that Hall was pretending that his memory had failed him? If so, do you think that the prosecutor have the right to try to refresh Hall's recollection?

3. Was the prosecutor entitled to impeach Hall by showing his prior inconsistent statements? Did she have to authenticate Hall's memo to do that? Did she violate the best evidence rule by asking him about the contents of a writing -- the memo -- without offering it in evidence?

In the real-world case on which this problem is based the appellate court said that the questioning was improper in part because no showing had been made of the reliability of the memo on which the hostile questioning was based. How do you explain the appellate court's ruling except as being the result of utter confusion? If the court was acting advertently, what motivated the court to garble the law as badly as it did?

---It is possible that the prosecutor waved the memorandum in the air (so to speak) and made it clear that his questions were based on the memo and that he continued this tactic even after it had become quite clear that the questioning of Hall had no chance of turning him around.

Q1. In our hypothetical case (this problem) was the prosecutor's effort to impeach Hall with his prior inconsistent statement an impermissible attempt to use Hall's prior statements as substantive evidence?

Q2. Was the prosecutor entitled to try to "turn Hall around" by "confronting" him with his prior statements even though (even if) Hall had already made it plain that he didn't want to testify for the government against Shoupe?

More questions:

1. Suppose Cleary's memo had been authenticated. Would it have been admissible to prove the truth of the matters stated therein?

a. Is Cleary's typed memo "past recollection recorded"?

b. Suppose it is. Doesn't it recount another hearsay statement or statements: Cleary's handwritten notes?

--Do we get around this problem by using the theory of past recollection recorded again? Do you see any possible problem with this theory? (Re-read FRE 803(5) and see if a possible problem springs to your mind.)

2. Suppose past recollection recorded works twice over. There is another hearsay problem, isn't there?: Cleary's original notes recount yet another out-of-court statement -- Hall's out-of-court statements. Aren't Hall's out-of-court statements to Cleary during the original interview hearsay?

Is there any way around this hurdle?

Admissions doctrine? (no)

Statement against interest?

•Common law: no -- because statements against "penal interest" -- self-incriminating statements, statements incriminating the declarant of a crime -- did not qualify as "statements against interest."

•Under the FRE self-incriminating statements CAN qualify as "statements against interest"; but is Hall "unavailable"? (Hall did not invoke a privilege; she is testifying.)

•Any other problems with the theory that Hall's statements to Cleary qualify as "statements against interest"?

Issue: Is Hall's statement, inculpating Shoupe, truly incriminating with respect to Hall? Cf. Williamson v. United States, 114 S. Ct. 2431 (1994).

If Hall's statement does fall within some exception to the hearsay rule, is it nevertheless barred by Crawford v. Washington?

Any other issues?