3/2/2018Tennessee: Forgetful Cop Can Testify Based On Notes, Video
Second highest court in Tennessee allows a cop to testify about a traffic stop he cannot remember.
Cops in Tennessee no longer need to have any independent recollection of the events about which they testify. The state Court of Criminal Appeals last week found no legal barrier to having a police officer testify in court about an incident that he does not remember.
Tennessee Highway Patrol Trooper Kenneth White had stopped Benjamin Tate Brown on January 13, 2016 for allegedly running a stop sign. While pulled over, Brown appeared to be tipsy and was eventually arrested for driving under the influence of alcohol (DUI). Brown's attorney attempted to have the initial traffic stop ruled invalid because the police officer had no recollection of what he was testifying about under oath.
"And, again, other than what you saw on the video and other than what you read in your police report, you have no memory of this interaction independent of those -- that document and that video that occurred with [Brown] on that evening?" the lawyer asked.
"No, sir," Trooper White replied. "That's correct."
The lawyer pointed out that the video does not show Brown's car for the entire duration of the turn, and that Brown could have stopped out of the frame. The Confrontation Clause gives defendants the right to cross-examine the witnesses against them, but if an officer is testifying based on nothing but written notes, the "witness" becomes, in effect, the piece of paper.
The appellate court was not persuaded. It was good enough that the trooper looked at the dashcam video and perused his notes prior to the hearing.
"Trooper White testified that, after reviewing his report and the video, he recalled observing the defendant's vehicle fail to come to a stop at the stop sign," Judge Robert L. Holloway Jr wrote for the appellate panel. "The trial court accredited the testimony of Trooper White."
The judges asserted that a true independent recollection of events is not needed. They also pointed to elements that Brown's lawyer failed to raise at trial.
"Trooper White was not questioned about anything that may or may not have been in the report concerning the defendant's failure to stop at the stop sign," Judge Holloway noted. "The report was not entered as an exhibit at the suppression hearing or at trial. The report is not part of the record on appeal, and we therefore have no way to determine whether the report may have aided Trooper White in refreshing his memory about the facts of this traffic stop."
The court upheld Brown's DUI conviction. A copy of the ruling is available in an 150k PDF file at the source link below.