Ohio v. Scott case brief

1. Ohio v. Scott (OH 1972)
1. Carol had originally given a statement to the police implicating her boyfriend; is now creating an alibi for him; prosecutor attempts to use 803(5) to get old statement in
2. holding: statement was properly admitted under this exception
• logical basis of this rule: distinction from “present memory refreshed” (use of memorandum to refresh witness’s memory, witness then testifies naturally) – here, witness’ present recollection is still absent after seeing the memorandum
• application of rule to facts – all elements are met
3. criticisms of this holding
• memory should be fully empty – at CL, if witness could testify partly, though not fully, about the event, then that was enough (exception didn’t apply)

-must try to revive memory first – you have to make proponent establish need first, which wasn’t done here.