Guest Post by Memphis Attorney Neil Umsted
A witness’ claimed lack of memory at trial, whether legitimate or feigned, will trigger a number of rules that can allow that witness’ prior statements to be introduced as substantive evidence, the Tennessee Supreme Court held in State v. Marlo Davis, W2011-01548-SC-R11-CD. Moreover, the Court held that so-called “inconsistent verdicts” will not, standing alone, entitle a defendant to any relief.
Marlo Davis was indicted along with a co-defendant for felony murder and premeditated murder—alternative theories of guilt for the homicide of a single victim. At trial, one of the State’s key witnesses, Jarcquise Spencer, testified that he did not recall witnessing the shooting, that he did not recall identifying the Defendant as the shooter in a statement to police, and that he did not recall testifying at the preliminary hearing in the case. The trial court, convinced that Spencer was feigning his memory loss, allowed the State to introduce Spencer’s prior statements and prior testimony as proof of the defendant’s guilt.