Past Recollection Recorded vs Refreshing Recollection

There are some concepts on the bar exam that are so similar that students tend to confuse one for the other. The concepts of refreshing recollection (sometimes referred to as present recollection revived) and past recollection recorded would make that list. Although they have some similarities, it's far more likely that the differences will be tested.

Refreshing Recollection:

Witnesses may use any writing or object for the purpose of refreshing their recollection in order to testify. To avoid hearsay obstacles, witnesses generally may not read from the writing while testifying. By not reading from the writing while testifying, they are not introducing the writing into evidence, and that avoids the potential hearsay problem. 

Whenever a witness has used a writing to refresh his/her memory while the witness is testifying, an adverse party is entitled to have the writing produced at trial, cross examine the witness about the writing, and introduce portions of the writing relating to the witness's testimony into evidence. If, instead, the witness refreshed his/her memory at some time other than while testifying, an adverse party is entitled to the above only if the court allows it. That's to say, these safeguards are mandatory if the memory is refreshed while testifying; if not, they are discretionary. 

In a criminal case, if the prosecution fails to produce or deliver a writing that the prosecution used to refresh a witness's recollection, the judge must strike the witness's testimony. A mistrial might also be appropriate, at the discretion of the judge. 

Past Recollection Recorded: 

There will be instances when witnesses state that they have insufficient recollection of an event to testify truthfully about that event even after they have consulted a record in an attempt to remember the details. In these instances, the record itself may be offered into evidence, but now we've also got a hearsay issue since the record is an out of court statement and it's offered for the truth of the matter asserted (the content of the record). 

The hearsay problem is avoided (that's to say, there's an exception), provided a proper foundation is laid. The foundation must include all of the following:

~ The witness has insufficient recollection to testify fully and accurately even after consulting the record. 

~ The witness had personal knowledge of the facts in the record when the record was made. 

~ The record was made by the witness, under the witness's direction, or adopted by the witness. 

~ The record was made when the matter was fresh in the witness's mind. 

~ The record accurately reflects the witness's knowledge. 

When a proper foundation is laid, the record may be read into evidence and heard by the jury. The record may not, however, be admitted into evidence as an exhibit unless offered by the adverse party.