Intro to the Federal Rules of Evidence - 61

6. Recorded Recollection (FRE 803(5))
a. Typical applications
1) an employee’s writing on inventory
2) an insurance company accident investigator’s accident report
3) a police officer’s investigation report
4) an admitting nurse’s notes about a patient’s symptoms and the patient’s comments
regarding pain.

b. Rationale
A writing made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand, despite the fact that x-x is curtailed.

c. Requirements
i) First-hand knowledge
The memo must relate to something of which the witness once had first-hand knowledge.

ii) Impaired recollection
“… insufficient recollection to enable the witness to testify fully and accurately…”
If the witness’ memory at the time of trial is perfectly clear about the events, the earlier record may not be introduced. The witness must suffer some impairment of his memory of the events, but this impairment need not be total.

iii) Made or adopted by W
The writing must have been made by the witness or made under his direction or adopted by the witness.

iii) Timely made – when fresh in memory
“… when the matter was fresh in the witness’ memory….”

A record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.

iv) Accuracy when written
“… to reflect [the witness’] knowledge correctly….”

This phrase means that the witness must testify either that he remembers making an accurate recording of the event in question although he no longer remembers the facts recorded, that he is confident he would not have written or adopted some description of the facts unless that description truly described his observations at the time.

v) Miscellaneous
1) Inadmissible as exhibit
The record is allowed only to be read out loud to the jury, unless offered by an adverse party
2) Recorded recollection v. present collection refreshed (FRE 612)
The use of the present recollection refreshed technique is not an exception to the hearsay rule at all – since the only thing that goes into evidence is the witness’ present testimony, and not the document, there is simply no out-of-court declaration.

Where an attempt at refreshing recollection has proven to be unsuccessful, the 803(5) exception – whereby W reads actual parts of the document into evidence- may be available.