United States v. Rappy

United States Court of Appeals for the Second Circuit · 1946 · Evidence

157 F.2d 964 (2d Cir. 1946)

Updated August 22, 2026

Evidencerefreshing recollectionprior consistent statementbusiness recordsjudicial noticeaiding and abettingjoint possessionimported stolen goods

Facts

A ship arriving in New York carried cartons of Swiss watch movements; one carton set aside for customs examination had been rifled and another carton listed on the manifest was missing on outturn. Rappy telephoned prospective buyers offering watch movements and described them as "hot" to Moskowitz; he later appeared with Essig at Weinstein's office, where Essig produced sample movements matching those on the manifest, sold about 1300 such movements, said they had been stolen in France, and said Rappy would receive one dollar per movement from the agreed ten-dollar price. After arrest, Rappy told Moskowitz not to tell government agents about their telephone conversation. At trial, the government used shipping and customs records to prove importation, and Moskowitz used a signed statement to refresh his recollection before testifying that Rappy had called the movements "hot."

Issue

Whether the government's documentary proof was sufficient and properly admitted to show that the watch movements had been imported and stolen during importation; whether the evidence was sufficient as to Rappy's possession; and whether Moskowitz's written statement was admissible after being used to refresh his recollection and then attacked on cross-examination.

Rule

Business records are admissible only when there is a showing not just that they were kept in the regular course of business, but also that it was the regular course of that business to make the record at the time. A writing used to refresh a witness's memory is ordinarily not itself evidence and may not be introduced by the party using it, because prior consistent statements are generally inadmissible for corroboration. But when the opposing party attacks the truthfulness of the very statement that the witness says revived an accordant memory, the truth or falsity of that statement becomes a relevant new issue, and the statement itself is admissible on that issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a fraud trial in Chicago, witness Dana Ortiz says she cannot recall whether Leo Mercer described certain invoices as "phony" during a phone call. After silently reviewing a signed statement she gave investigators two weeks after the call, Dana says her memory is refreshed and testifies that Leo used that word. On cross-examination, defense counsel attacks only Dana's poor present memory and stress, not the accuracy or truth of the signed statement itself.

May the prosecution introduce Dana's signed statement as evidence during its case-in-chief?

Explanation. Ordinarily, when a witness uses a prior statement to refresh memory, the evidence is the refreshed testimony, not the writing. The writing itself is not admissible merely to corroborate the witness. Under the majority's rule, the statement becomes admissible only if the opponent attacks the truthfulness of the very statement that allegedly revived an accordant memory. An attack limited to faulty memory does not do that.