Sunday, June 26, 2016

Past Recollection Recorded

One of the *many* hearsay exceptions that must be remembered is the one involving past recollection recorded. But before understanding the particulars you'll need to be able to read the fact pattern and understand from reading the facts that this exception is implicated. Look for a situation where a witness states that there is insufficient recollection of an event to enable testifying to the event fully and accurately.

And this is true even after the witness on the stand has had an opportunity to consult a writing that might aid in remembering the event. The writing may then be read into evidence but because it is an out of court statement offered for the truth of the matter asserted there is a hearsay problem. And the way to get around this hearsay problem is to satisfy the elements of the exception for this particular hearsay problem. The elements here amount to the foundation that must be laid to offer this kind of statement into evidence, and the foundation is as follows:

(1): The witness at one time had personal knowledge of the facts in the writing.

(2): The writing was made by the witness or under his/her direction, or it was adopted by the witness.

(3): The writing was timely made when the matter was fresh in the witness's mind.

(4): The writing is accurate.

(5): The witness now has insufficient recollection to testify fully and accurately.

Note that whenever a witness has used a writing to refresh his/her memory as stated above, an adverse party is entitled to have the writing produced at trial. An adverse party is also entitled to cross-exaimine the witness regarding the writing and to introduce portions relating to the witness's testimony into evidence.

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