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If the child can no longer remember, why can't the tape serve as a recorded recollection exception? Put child on the stand. Ask if she can remember. Ask if tape accurately recorded her memory from back then. Offer it.
Child is available for cross-examination, so no Crawford.
That seems like a good argument. See Pickett v. U.S., 822 A.2d 404, 406-07 (D.C. 2003); State v. Hocevar, 7 P.3d 329, 340-41 (Mont. 2000) (video properly kept out where "[t]he Defendant did not demonstrate, or even make a proffer, that Mathew could not recollect or communicate regarding the subject matter of the videotape,”; State v. Hooper, 1999 WL 54811 at *3 n.2 (Tenn.Crim.App. February 8, 1999) ("we conclude that if the record is an audio or video recording, there is no reason why the tape should not be played to the jury during trial and transcribed in the record at that time. Indeed, the Tennessee Court of Appeals has upheld the playing of an audiotape to the jury because the tape qualified as a recorded recollection under Rule 803(5). See Mitchell, 971 S.W.2d at 28-29."), rev'd on other grounds, 29 S.W.3d 1 (Tenn. 2000.
Under 803(5), as JB said, you should be able to get the tape in by asking whether the child remembers the incident. If you establish that the child can't remember now, but that the recording was made at at time when the incident was still fresh in his/her memory, the judge should allow you to play the tape. The tape doesn't get into evidence unless offered by the defense, but there is no Confrontation Clause issue, because the witness is there to be cross-examined.
FYI - I have found some cases where the CAC tape can be admissible as a prior consistent statement to rebut a charge of recent fabrication or improper influence or motive: Perez-Del Rio v. State, 2006 WL 561887; Graves v. State, 176 S.W.3d 422; Box v. State, 2004 WL 1091891.
But for 803(5) for recorded recollection exception, the rules say "document" and the "document" may be read to the jury but not received in evidence. How does that square with a CAC video?
The rule uses the words "memorandum" "record" and "document" interchangeably. Black's Law Dictionary says a "document" is "Something tangible on which words, symbols, or marks are recorded." Seems to me a CAC tape is designed to document a child's statement, and is a tangible thing upon which the child's words are recorded. It certainly serves the same purpose as a paper document, but is arguably more likely to reflect the true recollection of the witness, since it is capable of capturing more detail, especially in the case of a child who may have diffculty writing down what they are recording.
The rules of evidence need updating throughout as to the use of "document" versus "recording." Since 1985, when the rules became effective, the collection of statements have moved much more toward recordings.
Another area where this needs improvement is the rule dealing with translations. There is no uniform rule dealing with translation of "recordings."
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