Rather, more narrowly, "[t]he rationale for this rule is simple: a deposition is introduced at trial in place of the live testimony of the same witness[;] [i]t is thus considered to be testimonial in nature and so, like a transcript of live testimony, is not given to the jury during deliberations." O'Neal v. Pipes Enters., Inc., 930 S.W.2d 416, 421 (Mo. App. W.D. 1995) (citing State v. Brooks, 675 S.W.2d 53, 57 (Mo. App. S.D. 1984) ) (noting the rationale for excluding such testimonial evidence from jury deliberations applies equally in both criminal and civil cases). Missouri courts are generally concerned with asymmetry, in that
Furthermore, Appellant did not put his character in issue as he did not testify nor did he call Mr. Helms, Mr. Bocardo, or Ms. Davis as character witnesses. See State v. Brooks, 675 S.W.2d 53, 58 (Mo.App.S.D.1984) (stating that a prosecutor may not attack defendant's character when it was not put into issue by the accused). Though the scope and extent of cross-examination in criminal cases rests largely in the discretion of the trial judge, State v. Gardner, 8 S.W.3d 66, 72 (Mo. banc 1999), evidence of other crimes, if erroneously admitted, is presumed to be prejudicial.
Defendant claims there are two reasons why the court plainly erred in giving the jury the preliminary hearing transcript excerpt. First, Defendant cites State v. Evans, 639 S.W.2d 782, 795 (Mo.banc 1983) and State v. Brooks, 675 S.W.2d 53, 57 (Mo.App. 1984) for the general rule that exhibits testimonial in nature cannot be given to the jury during its deliberations. The reason often given for the rule is that testimonial exhibits tend to unduly emphasize some of the testimony, thus raising the possibility the jury would give it undue weight.
However, if the jury wishes to review the recording it may, upon request, do so in the courtroom in the presence of all parties and the judge. To lend guidance to the trial courts, we offer the following examples of recorded testimonial evidence that have been held impermissible to send to the jury room: depositions, Kansas v. Wilson, 188 Kan. 67, 360 P.2d 1092, 1098 (1961), Missouri v. Brooks, 675 S.W.2d 53, 57 (Mo.Ct.App.1984); expert witness reports, Davolt v. Highland, 119 S.W.3d 118, 135 (Mo.Ct.App.2003); eyewitness' videotaped statement to law enforcement officers, Lewis v. Delaware, 21 A.3d 8, 14 (Del.2011); eyewitness' written statement to law enforcement officers, Montana v. Herman, 350 Mont. 109, 204 P.3d 1254, 1260–61 (2009), impliedly overruled on other grounds by Montana v. Ariegwe, 338 Mont. 442, 167 P.3d 815 (2007), Schwenke v. Wyoming, 768 P.2d 1031, 1037 (Wyo.1989); transcript of defendant's prior trial testimony, Barnes v. Florida, 970 So.2d 332, 339 (Fla.2007); transcript of expert witness' trial testimony, New Hampshire v. Littlefield, 152 N.H. 331, 876 A.2d 712, 724 (2005); attorney's written summary of witness' trial testimony, Hodgdon v. Frisbie Mem'l Hosp., 147 N.H. 286, 786 A.2d 859, 865 (2001); trial testimony presented by video recording, Young v. Florida, 645 So.2d 965, 967 (Fla.1994); and state agency's recorded interview of child victim, id.;Stephens v. Wyoming, 774 P.2d 60, 70
To lend guidance to the trial courts, we offer the following examples of recorded testimonial evidence that have been held impermissible to send to the jury room: depositions, Kansas v. Wilson, 360 P.2d 1092, 1098 (Kan. 1961), Missouri v. Brooks, 675 S.W.2d 53, 57 (Mo. Ct. App. 1984); expert witness reports, Davolt v. Highland, 119 S.W.3d 118, 135 (Mo. Ct. App. 2003); eyewitness' videotaped statement to law enforcement officers, Lewis v. Delaware, 21 A.3d 8, 14 (Del. 2011); eyewitness'written statement to law enforcement officers, Montana v. Herman, 204 P.3d 1254, 1260-61 (Mont. 2009), impliedly overruled on other grounds by Montana v. Ariegwe, 167 P.3d 815 (Mont. 2007), Schwenke v. Wyoming, 768 P.2d 1031, 1037 (Wyo. 1989); transcript of defendant's prior trial testimony, Barnes v. Florida, 970 So.2d 332, 339 (Fla. 2007); transcript of expert witness' trial testimony, New Hampshire v. Littlefield, 876 A.2d 712, 724 (N.H. 2005); attorney's written summary of witness' trial testimony, Hodgdon v. Frisbie Mem'l Hosp., 786 A.2d 859, 865 (N.H. 2001); trial testimony presented by video recording, Young v. Florida, 645 So.2d 965, 967 (Fla. 1994); and state agency's recorded interview of child victim, id.; Stephens v. Wyoming, 774 P.2d 60, 70 (Wyo. 1989), overruled on oth
See, e.g., Pearson v. State, 278 Ga. 490, 604 S.E.2d 180, 183 (2004) ("'[W]ritten testimony,' which merely duplicates a witness' oral testimony or substitutes as a written record of his testimony should be withheld from the jury."); Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 572 (Ky.Ct.App. 1999) ("In general, testimonial evidence (such as a copy of a deposition) is not allowed in a jury room. The rationale behind banning such testimonial evidence from the jury room is the likelihood that the triers of fact may place more emphasis on written rather than spoken words since the written words are readily before them physically while the spoken words uttered at trial can only be conjured up by memory."); State v. Brooks, 675 S.W.2d 53, 57 (Mo.Ct.App. 1984) ("[T]he use of the depositions at trial simply took the place of testimony of live witnesses and, therefore, was testimonial in nature. Generally, exhibits . . . which are testimonial in nature may not be given to the jury during their deliberations.
State v. Solomon, 96 Utah 500, 87 P.2d 807, 811 (1939). See Tibbs v. Tibbs, 257 Ga. 370, 359 S.E.2d 674, 675 (1987) (citing Thomason v. Genuine Parts Co., 156 Ga.App. 599, 275 S.E.2d 159, 162 (1980)) ("It is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once."); State v. Freetime, 303 So.2d 487, 488-89 (La. 1974); ("The general reason for the prohibition [on submission of testimonial evidence to the jury] is a fear that the jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them."); State v. Brooks, 675 S.W.2d 53, 57 (Mo.Ct.App. 1984) ("Generally, exhibits . . . which are testimonial in nature may not be given to the jury during their deliberations."); Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365, 370 (1972) (citing Pennsylvania Rule of Criminal Procedure 1114, which provides that "[up]on retiring for deliberations, the jury may take with it such exhibits as the trial judge deems proper. The jury shall not be permitted to have a transcript of any trial testimony.
Defendant argues that the Due Process Clause of the Fourteenth Amendment provides relief for the admission of “evidence that is so unduly prejudicial that it renders the trial fundamentally unfair,” citing Dawson v. Delaware, 503 U.S. 159, 179, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). He also asserts that “[w]hen evidence of other crimes is erroneously admitted, it is presumed to be prejudicial[,]” citing State v. Brooks, 675 S.W.2d 53, 59 (Mo.App. S.D.1984), and “the State must overcome the presumption of prejudice by proving beyond a reasonable doubt that the error was harmless[,]” citing State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983). He argues that, even if the big knife was within the “res gestae” of the offenses, “that does not mean that the [big] knife was not more prejudicial than probative.”
We agree with Defendant that her statement about not going "back" to jail does constitute evidence that she previously had been convicted of a crime. SeeState v. Brown, 670 S.W.2d 140, 141 (Mo. App. 1984); State v. Brooks, 675 S.W.2d 53, 57-59 (Mo. App. 1984). That being so, however, her statement is not ipso facto inadmissible.
Hahn asserts, further, that when evidence of other crimes is erroneously admitted it is presumed to be prejudicial. See State v. Brooks , 675 S.W.2d 53, 59 (Mo.App. 1984). The state must overcome the presumption of prejudice by proving beyond a reasonable doubt that the error was harmless.